COGNIZANCE of OFFENCES

(With Special Reference to P.C. Act, 1988 as Amended in 2018)

S.S. Upadhyay
Former District & Sessions Judge/
Former Addl. Director (Training)
Institute of Judicial Training & Research, UP, Lucknow.
Member, Governing Body,
Chandigarh Judicial Academy, Chandigarh.
Former Legal Advisor to three Hon’ble Governors of
Uttar Pradesh, Lucknow
Mobile : 9453048988
E-mail : [email protected]
Website: lawhelpline.in

1.1 Cognizance: Meaning of ?: Taking cognizance of an offence is not the same thing
as issuance of process. ‘Cognizance’ means when the Magistrate or the court applies
his/its judicial mind to the facts mentioned in a complaint or a police report or upon
information received from any person that an offence has been committed.
See: State of Karnataka Vs. Pastor P. Raju, (2006) 6 SCC 728.

1.2 'Cognizance': Meaning of ?: 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. Once the Magistrate applies his
mind to the offence alleged and decides to initiate proceeding against the alleged
offender, it can be stated that he has taken cognizance of the offence and cognizance
is in regard to the offence and not the offender. Cognizance would take place at a
point when a Magistrate first takes judicial notice of the offence either on a
complaint or on a police report or upon information of a person other than the police
officer taking judicial notice is nothing but perusing the report of the police officer,
proceeding further on that report by opening the file and thereafter taking further
steps to ensure the presence of the accused and all other consequential steps
including at a later stage and depending upon the nature of offence alleged to pass a

Page 1 of 20
 necessary order of committal to a court of session. See: Prasad Shrikant Purohit
Vs. State of Maharashtra, (2015) 7 SCC 440.

1.3 Meaning of “Cognizance”: The word “cognizance” is not defined in the Code of
Criminal Procedure. But the word “cognizance” is of indefinite import. It has no
esoteric or mystic significance in criminal law. It merely means ‘become aware of’
and when used with reference to a court or a Judge, it cannot ‘take notice of
judicially’. It indicates the point when a court or a Magistrate takes judicial notice
of an offence with a view to initiating proceedings in respect of such offence said to
have been committed by someone. See: S.K. Sinha, Chief Enforcement Officer
Vs. Videocon International Ltd., (2008) 2 SCC 492(Para 19)

1.4 Cognizance of offences by Special Judge under P.C. Act, 1988 as amended in
2018: Section 5 of the Prevention of Corruption Act, 1988 empowers the Special
Judge to take cognizance of the offences under the said Act directly without the case
being committed to him by the Magistrate. In trying the offences under the said Act,
the Special Judge shall follow the procedure prescribed by the CrPC for trial of the
warrant cases by Magistrate.

2.1 Recording of reasons by courts in support of conclusion arrived at in their

judgments and orders mandatory: Recording of reasons in support of the
conclusions arrived at in a judgment or order by the Courts in our judicial system
has been recognized since the very inception of the system. Right to know the
reasons for the decisions made by the Judges is an indispensable right of a litigant.
Even a brief recording of reasoned opinion justifying the decision made would
suffice to withstand the test of a reasoned order or judgment. A non-speaking,
unreasoned or cryptic order passed or judgment delivered without taking into
account the relevant facts, evidence available and the law attracted thereto has

Page 2 of 20
 always been looked at negatively and judicially de-recognized by the courts. Mere
use of the words or the language of a provision in an order or judgment without any
mention of the relevant facts and the evidence available thereon has always been
treated by the superior courts as an order incapable of withstanding the test of an
order passed judicially. Ours is a judicial system inherited from the British Legacy
wherein objectivity in judgments and orders over the subjectivity has always been
given precedence. It has been judicially recognized perception in our system that
the subjectivity preferred by the Judge in place of objectivity in a judgment or order
destroys the quality of the judgment or order and an unreasoned order does not
subserve the doctrine of fair play as has been declared by the Apex Court in the
matter of Andhra Bank Vs. Official Liquidator, 2005 (3) SCJ 762. For a qualitative
decision arrived at judicially by the courts, it is immaterial in how many pages a
judgment or order has been written by the Judge as has been declared by the Apex
Court in the matter of Union of India Vs. Essel Mining & Industries Ltd., (2005)
6 SCC 675.

2.2 Meaning of “ speaking and reasoned order” passed by application of mind

?: An order can be said to be speaking, reasoned and passed after application of
mind when it discloses:
(i) facts constituting the offence alleged in the complaint or FIR/ case of the
prosecution
(ii) discussion of evidence led in support of such offence,
(iii) discussion of the ingredients constituting particular offences
(iv) conclusion arrived at by the court

3.1 Long judgments not necessarily great: Brevity in judgment writing has not lost
its virtue. All long judgments or orders are not great nor are brief orders always
bad. What is required of any judicial decision is due application of mind, clarity of

Page 3 of 20
 reasoning and focused consideration. A slipshod consideration or cryptic order or
decision without due reflection on the issues raised in a matter may render such
decision unsustainable. Hasty adjudication must be avoided. Each and every matter
that comes to the court must be examined with the seriousness it
deserves. See: Board of Trustees of Martyrs Memorial Trust and Another Vs.
Union of India and Others, (2012) 10 SCC 734 (Para 22).

3.2 Passing lengthy orders should be avoided: The time has reached to adopt all
possible measures to expedite the court procedures and to chalk out measures to
avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed
orders at different stages merely because the counsel would address arguments at
all stages, the snail paced progress of proceedings in trial courts would further be
slowed down. It can be appreciated if such a detailed order has been passed for
culminating the proceedings before them. But it is quite unnecessary to write
detailed orders at other stages, such as issuing process, remanding the accused to
custody, framing of charges, passing over to next stages in the trial. If there is no
legal requirement that the trial court should write an order showing the reasons for
framing a charge, why should the already burdened trial courts be further burdened
with such an extra work. See: Kanti Bhadra Shah Vs. State of West Bengal, 2000
CrLJ 746 (SC)

3.3 Number of pages covered in a judgment not material: Writing unnecessarily

lengthy judgments than required should be avoided. It is not the number of pages in
a judgment but sufficiency of reasons in support of the conclusions arrived at by the
judge that is relevant. Judgments or orders must be reasoned and speaking to justify
the conclusion. See: Union of India Vs. Essel Mining & Industries Ltd., 2005 (6)
SCC 675.

Page 4 of 20
3.4 Laboured judgment: Writing unnecessarily lengthy judgments than required
should be avoided. It is not the number of pages in a judgment but sufficiency of
reasons in support of the conclusions arrived at by the judge that is relevant.
Judgments or orders must be reasoned and speaking to justify the conclusion.
See: Union of India vs. Essel Mining & Industries Ltd., 2005 (6) SCC 675.

3.5 Brief judgment when valid?: Where a finding is arrived at cursorily, the judgment
based on such a finding is not vitiated if the finding is supported by evidence.
See: Satya Pal Vs. Ved Prakash, AIR 1980 All 268.

3.6 Brief judgment when invalid?: A judgment may be brief, but not so brief as not
to disclose the points for determination or to discuss the evidence led thereon .
See: Kuldip Oil Industries Vs. Pratap Singh, AIR 1959 All 505.

3.7 Summoning order passed by Magistrate must be reasoned: Summoning of an

accused in a criminal case is a serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant has to bring only two witnesses
to support his allegations in the complaint to have the criminal law set into motion.
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. He has to examine
the nature of allegations made in the complaint and the evidence both oral and
documentary in support thereof and would that be sufficient for the complainant to
succeed in bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of preliminary evidence before summoning
of the accused. The Magistrate has to carefully scrutinize the evidence brought on
record and may even himself put questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the accused. See:
Pepsi Foods Ltd. vs. Special Judicial Magistrate, 1998 SCC (Criminal) 1400.
Page 5 of 20
3.8 Passing detailed order by giving detailed reasons not necessary for taking
cognizance: It is not necessary to pass a detail order giving detailed reasons while
taking cognizance. The order taking cognizance should only reflect application of
judicial mind. If the Magistrate after going through the complaint petition and the
statements of the witnesses or after going through the FIR, case diary and charge
sheet or the complaint, as the case may be, comes to a conclusion that the offence is
made out, he is bound to take cognizance of the offence. The order should reflect
application of judicial mind to the extent that from the FIR, the case diary or
complaint, offence is made out. See: S.K. Sinha, Chief Enforcement Officer Vs.
Videocon International Ltd., (2008) 2 SCC 492

3.9 Court not required to give detailed reasons for passing an order summoning
the accused: Where the court took cognizance of the offences u/s 120-B, 420, 467,
468, 471 IPC and u/s 13(2)(d) of the Prevention of Corruption Act, 1988 on the
basis of the charge-sheet submitted by the investigating officer, it has been held that
the court is not required to give detailed reasons for passing an order summoning
the accused. See:
(i) Diwakar Singh Vs. CBI, Lucknow, 2008 (61) ACC 755 (Allahabad)
(ii) Deputy Chief Controller Vs. Roshanlal, 2003 (36) ACC 686 (SC)

4.1 Magistrate not bound by the report of the police: Magistrate is not bound by the
report or opinion of the police. Inspite of contrary report from the police, the
Magistrate can, on the basis of material contained in the case diary as compiled by
the investigating officer during investigation, take cognizance of the offence. See:
(i) ChittaranjanMirdha Vs. Dulal Ghosh, 2010 (70) ACC 365 (SC)
(ii) Arshad Vs. State of UP, 2008 (61) ACC 863 (Allahabad)
(iii) MinuKumari Vs. State of Bihar, AIR 2006 SC 1937
(iv) HemandDhasmana Vs. CBI, AIR 2001 SC 2721

Page 6 of 20
 (v) M/S India Carat Pvt. Ltd. Vs. State of Karnataka, AIR 1989 SC 885
(vi) India Carat Pvt. Ltd. Vs. State of Karnataka, AIR 1989 SC 885.
(vii) H.S. Bains Vs. State, AIR 1980 SC 1883
(viii) Abhinandan Jha Vs. Dinesh Mishra, AIR 1968 SC 11

4.2 Mere mention by Magistrate in the order that he went through the FIR,
documents and statements of witnesses in the case diary not sufficient: Reason
or an opinion to proceed further against the accused is to be stated in the order itself.
Hon'ble Supreme Court while dealing with the scope of Section 156(3) CrPC has
held that the application of mind by the Magistrate should be reflected in the order.
The mere statement that he has gone through the complaint, documents and heard
the complainant, as such, as reflected in the order, will not be sufficient. The order
is liable to be set aside if no reason is given therein while coming to the conclusion
that there is prima facie case against the accused, though detailed reasons need not
to be given. The proper satisfaction should be recorded by the Judge. See:
(i) Anil Kumar Vs. M.K. Aiyappa, (2013) 10 SCC 705(Para 11)
(ii) Sunil Bharti Mittal Vs. CBI, (2015) 4 SCC 609
(iii) Amresh Kumar Dhiraj Vs. State of Jharkhand , 2019 SCC OnLine Jhar
2775, (Paras 10, 14 &22).
(iv) Judgment dated 08.03.2021 of Jharkhand High Court passed in Cr. M. P.
No. 2275 of 2020,Mithilesh Prasad Singh Vs. The State of Jharkhand
through A.C.B.

5.1 Cognizance taking order passed on charge-sheet must be speaking and

reflective of mind to the facts and material collected by the investigating
officer: In the case noted below, a charge-sheet for the offence u/s 7-A of the
Prevention of Corruption Act, 1988 as amended in 2018 was submitted to the Court
of Special Judge (Anti-Corruption), Ranchi, Jharkhand by the investigating agency
against the accused Mithilesh Prasad Singh, an Assistant Sub-Inspector of Police of

Page 7 of 20
Jharkhand, for accepting a bribe of Rs. 3000/- from the accused towards the total
agreed amount of Rs. 35000/-. The Special Judge took cognizance of the said
offence without mentioning therein the relevant facts constituting the offence and
the evidence collected by the investigating agency during the course of investigation
and passed a proforma like cognizance taking order by saying that from perusal of
the sanction order of prosecution, supplementary case diary and the original record
including documents available on the record, prima facie case against the accused
for the offence u/s 7-A of the said Act was made out. On challenge before the
Jharkhand High Court u/s 482 CrPC, the single Hon’ble Judge gave his approval to
the aforesaid cognizance taking order passed by the Special Judge (Anti-Corruption)
and observed thus: “In view of the overwhelming material on the record, this court
is of the considered view that there is ample material on the record for the Learned
Trial Court to take cognizance for the offence punishable u/s 7-A of the Prevention
of Corruption Act, 1988 as amended in 2018 and that the uncontroverted allegation,
as made out, established a prima facie case against the petitioner/accused of having
committed the said offence. Accordingly, this petition being without any merit is
dismissed. Before parting, it is pertinent to mention here that the Learned Trial
Court could have done well by making a detailed discussion about the materials in
the record at the time of taking cognizance of the offence in order to obviate the
petitioner/accused approaching this court and this court, making detailed
discussion of the materials in the record. The Judicial Officers, particularly, those
dealing with the Prevention of Corruption Act or the Officers posted in the Superior
Judicial Services, who can be posted as Special Judges, under the various special
Acts need to be trained in this respect to save the precious judicial work hours of
this court. The Director, Judicial Academy, Jharkhand is directed to conduct a
refresher training course for such officers, if necessary, by virtual mode, on any day
within four months from the date of receipt of this order. The Registrar General of
this Court is directed to supply a copy of the order to the Director, Judicial Academy
for compliance forthwith.” See: Judgement dated 08.03.2021 passed by the

Page 8 of 20
 Jharkhand High Court in Criminal M.P. No. 2755/2020, Mithilesh Prasad
Singh Vs. State of Jharkhand through A.C.B.

5.2 Only prima facie case has to be seen at the stage of cognizance: Before taking
cognizance, the court has to be satisfied that there is a prima facie evidence which
means the evidence that is sufficient to establish a fact or to raise a presumption of
truth of facts unless controverted. At the stage of taking cognizance only prima facie
case is to be seen. Cognizance is taken of the offence and not of the accused. See:
Kishun Singh Vs. State of Bihar, (1993) 2 SCC 16.

5.3 Filling in blanks and passing mechanical and cryptic summoning order
deprecated: Whenever any police report or complaint is filed before the magistrate,
he has to apply his mind to the facts stated in the report or complaint before taking
cognizance. If after applying his mind to the facts of the case, the magistrate come
to the conclusion that there is sufficient material to proceed with the matter, he may
take cognizance. Judicial orders cannot be allowed to be passed in a mechanical
manner either by filling in blank on a printed proforma or by affixing a readymade
seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot
be allowed to perpetuate. This reflects not only lack of application of mind to the
facts of the case but is also against the settled judicial norms. Therefore this practice
must be stopped forthwith. See: Order dated 06.9.2010 passed by Allahabad
High Court in Criminal Misc. Application No.7279/2006, Abdul Rasheed Vs.
State of UP & Circulated amongst the judicial officers of the state of UP vide
High Court’s Letter.No 19096/2010 dated 30.11.2010

6.1 Summoning of accused for additional offence not mentioned in charge-sheet: In

the cases noted below where a charge-sheet was submitted by the investigating
officer for some offences mentioned in the FIR but had not included in the charge-

Page 9 of 20
 sheet the offence u/s 395 IPC and upon the application of the complainant
Magistrate found that the offence of Section 395 IPC was also made out and
committed the case to the Sessions, the Supreme Court upheld the order of the
Magistrate. See:
(i) Rakesh Prasad Singh Vs. State of UP, 2010 (71) ACC 438 (Allahabad).

(ii) Rajendra Prasad Vs. Bashir, (2002) SCC Criminal 21

6.2 Cognizance by Magistrate on receiving final report from police u/s 173 CrPC :
The Magistrate has a role to play while committing the case to the court of sessions
upon taking cognizance on the police report submitted before him u/s 173(3)
CrPC. In the event the Magistrate disagrees with the police report he has two
choices. He may act on the basis of a Protest Petition that may be filed or he may
while disagreeing with the police report issue process and summon the accused but
he would have to proceed on the basis of the police report itself and either enquire
into the matter or commit it to the court or session if the same was found to be triable
by the sessions court. See: Dharam Pal Vs. State of Haryana, AIR 2013 SC
3018(Five-Judge Bench).

6.3 Duty of Magistrate when cognizance on police report received under 173(2)
CrPC already taken but on further investigation u/s 173(8) CrPC police
submits final report : Supplementary police report received from police u/s 173(8)
CrPC shall be dealt with by the court as part of the primary police report received
u/s 173(2) CrPC. Both these report have to be read conjointly and it is the
cumulative effect of the reports and the documents annexed thereto to which the
court would be expected to apply his mind to determine whether there is exists
grounds to presume that the accused has committed the offence and accordingly
exercise its powers u/s 227 or 228 CrPC. See: Vinay Tyagi Vs. Irshad Ali, (2013)
5 SCC 762.

Page 10 of 20
 Note : The ruling in Vinay Tyagi case elaborately deals with the power of court
regarding (i) further investigation (ii) reinvestigation (iii) supplementary police
report received u/s 173(8) CrPC (iv) power of court to take second time cognizance
of the offences on receipt of supplementary police report u/s 173(8) CrPC (v) mode
of dealing with final report and supplementary police report received u/s 173(8)
CrPC disclosing commission of offences.

6.4 Defence evidence or defence argument not to be considered by Magistrate at

the time of cognizance and summoning: At the stage of summoning the
accused, Magistrate is required to apply his judicial mind only with a view to take
cognizance of the offence, or, in other words, to find out whether prima facie case
has been made out for summoning the accused persons. At this stage, the learned
Magistrate is not required to consider the defence version or materials or arguments
nor is he required to evaluate the merits of the materials or evidence of the
complainant, because the Magistrate must not undertake the exercise to find out at
this stage whether the materials will lead to conviction or not. See: Sonu Gupta
Vs. Deepak Gupta & Others, (2015) 3 SCC (424) (Para 8).

7. Hearing accused before ordering further investigation u/s 173(8) CrPC not
necessary: There is no inhibition for court to direct further investigation u/s 173(8)
CrPC. Hearing of accused or co-accused before ordering further investigation u/s
173(8) CrPC is not necessary. See: Satishkumar Nyalchand Shah Vs. State of
Gujarat, (2020) 4 SCC 22

8.1. Primary police report u/s 173(2) and supplementary police report u/s 173(8) to
be read conjointly: Supplementary police report received from police u/s 173(8)
CrPC shall be dealt with by the court as part of the primary police report received
u/s 173(2) CrPC. Both these report have to be read conjointly and it is the

Page 11 of 20
 cumulative effect of the reports and the documents annexed thereto to which the
court would be expected to apply his mind to determine whether there is exists
grounds to presume that the accused has committed the offence and accordingly
exercise its powers u/s 227 or 228 CrPC. See: Vinay Tyagi Vs. Irshad Ali, (2013)
5 SCC 762.

8.2 Two case diaries submitted by two different investigating agencies after two
investigations to be read conjointly: Supplementary police report received from
police u/s 173(8) CrPC shall be dealt with by the court as part of the primary police
report received u/s 173(2) CrPC. Both these report have to be read conjointly and
it is the cumulative effect of the reports and the documents annexed thereto to which
the court would be expected to apply his mind to determine whether there is exists
grounds to presume that the accused has committed the offence and accordingly
exercise its powers u/s 227 or 228 CrPC. See : Vinay Tyagi Vs. Irshad Ali, (2013)
5 SCC 762.
Note : The ruling in Vinay Tyagi case elaborately deals with the power of court
regarding (i) further investigation (ii) reinvestigation (iii) supplementary police
report received u/s 173(8) CrPC (iv) power of court to take second time
cognizance of the offences on receipt of supplementary police report u/s 173(8)
CrPC (v) mode of dealing with final report and supplementary police report
received u/s 173(8) CrPC disclosing commission of offences.

8.3 Second time cognizance of offences under added Sections in supplementary

charge-sheet submitted u/s 173(8) CrPC: Where supplementary charge-sheet was
filed u/s 173(8) CrPC for offences other than those in the main charge-sheet, it has
been held by the Hon'ble Allahabad High Court that the same does not require re-
cognizance of matter as cognizance had already been taken and if re-cognizance is
taken regarding added sections, then at the most, it may be called irregularity but it
is not such irregularity which may vitiate trial and is very well covered by the

Page 12 of 20
 provisions of Section 460(c) of the CrPC. See: Nawal Kishore Vs. the State of UP
& Another, 2015 CrLJ (NOC) 95 (Allahabad).

9.1 A person not charge sheeted can be summoned at the stage of taking
cognizance: A person not charge sheeted can be summoned as accused at the stage
of taking cognizance of the offences u/s 190 (1)(b) CrPC. The question of
applicability of Section 319 CrPC does not arise at this stage. See: Swil Limited
Vs. State of Delhi, AIR 2001 SC 2747.

9.2 Magistrate can take cognizance of offences against a person not charge sheeted
by police: Once cognizance has been taken by the Magistrate, he takes cognizance
of the offence and not of the offenders. Once he takes such cognizance, it becomes
his duty to find out who the offenders really are. If he comes to the conclusion that
apart from the persons sent up by the police some other persons are also involved,
it is his duty to proceed against those persons. Therefore, when a Magistrate takes
cognizance of offences u/s 190(1)(b) CrPC upon police report, he is not restricted
to issue process only to the persons challaned by the police. See: Hareram Vs.
Cikaram, AIR 1978 SC 1568.

9.3 A person though named in FIR but not charge sheeted cannot be summoned
by Magistrate at the stage of taking cognizance of the offence: Magistrate cannot
issue process against those persons who may have been named in the FIR as accused
persons but not charge sheeted in the charge sheet submitted by the police u/s 173
CrPC. Such persons can be arrayed as accused persons in the exercise of powers u/s
319 CrPC on the basis of material or evidence brought on record in the course of
trial. See: Kishori Singh Vs. State of Bihar, 2001 Criminal Law Journal 123
(SC).

Page 13 of 20
9.4 Magistrate can summon some other person as accused not named in FIR or
charge-sheeted u/s 173(2) CrPC: Person who has not joined as accused in the
charge-sheet can be summoned at the stage of taking cognizance under S. 190. Thus,
the Magistrate is empowered to issue process against some other person, who has
not been charge-sheeted, but there has to be sufficient material in the police report
showing his involvement. In that case, the Magistrate is empowered to ignore the
conclusion arrived at by the investigating officer and apply his mind independently
on the facts emerging from the investigation and take cognizance of the case. At the
same time, it is not permissible at this stage to consider any material other than that
collected by the investigating officer. See: Sunil Bharti Mittal Vs. CBI, AIR 2015
SC 923 (Three-Judge Bench)

10.1 After committal of the case by Magistrate, Court of Sessions has jurisdiction
u/s 193 CrPC to summon other persons as accused who were not charge-
sheeted: Sessions Court has jurisdiction u/s 193 CrPC, on committal of a case to it,
to take cognizance of offence against persons not named as offenders, whose
complicity in the crime comes to light from the material available on record. Hence
on committal of the case by Magistrate u/s 209 CrPC, Sessions Judge is justified in
summoning, without recording evidence, the new accused not named in the police
report u/s 173 CrPC to stand trial along with those already named in the police report
i.e. charge-sheet. Sessions Court having jurisdiction u/s 193 CrPC, mere exercise of
power under a wrong provision like Section 319 CrPC would not render its order
invalid. On committal of the case u/s 209 CrPC, the restriction of Section 193 CrPC
on the Court of Sessions to take cognizance of an offence as a court of original
jurisdiction gets lifted. Once the case is committed to the Court of Sessions, the bar
of Section 193 CrPC is lifted and the Court of Sessions can summon any person
whose complicity in the commission of the crime can prima facie be gathered from
the material on record. See:
(i) Kishun Singh Vs. State of Bihar, (1993) 2 SCC 16.

Page 14 of 20
 (ii) Nisar Vs. State of UP, (1995) 2 SCC 23.

10.2 Cognizance by Magistrate u/s 190 CrPC in a sessions tribal case can be taken
only once : Cognizance by Magistrate u/s 190 CrPC in a sessions tribal case can
be taken only once. After commitment of the case u/s 209 CrPC to the sessions, the
sessions court can take cognizance of further offences in exercise of its powers u/s
193 CrPC. See: Balveer Singh Vs. State of Rajasthan, (2016) 6 SCC 680.

11.1 Prosecution of a person on complaint case, a serious matter: In the case not
below,the Director of a company who had not issued the cheque and had resigned
from the company much before the date of issue of the cheque but even then he was
prosecuted by the complainant for offences u/s 138 read with 141 of the Negotiable
Instruments Act, 1881 by filing a complaint before the magistrate, quashing the
criminal proceedings initiated against the Director/ accused, the Hon’ble Supreme
Court has held that criminal prosecution is a serious matter. It affects the liberty of
a person. No greater damage can be done to the reputation of a person than dragging
him in a criminal case. See: Harshendra Kumar D. Vs. Rebatilata Koley, 2011
CrLJ 1626 (SC).

11.2 Duty of Magistrate in passing summoning order in complaint cases: In the case
noted below, the duty of Magistrate while passing summoning order in a complaint
case has been clarified by the Hon’ble Supreme Court thus : “Summoning of an
accused in a criminal case is a serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant has to bring only two witnesses
to support his allegations in the complaint to have the criminal law set into motion.
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. He has to examine
the nature of allegations made in the complaint and the evidence both oral and
documentary in support thereof and would that be sufficient for the complainant to

Page 15 of 20
 succeed in bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of preliminary evidence before summoning
of the accused. The Magistrate has to carefully scrutinize the evidence brought on
record and may even himself put questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the accused.”
See: Pepsi Foods Ltd. Vs. Special Judicial Magistrate, (1998) 5 SCC 749

11.3 Duty of Magistrate while issuing summons to accused u/s 204 CrPC: While
issuing summons to accused u/s 204 CrPC, Magistrate has only to see whether
allegations made in complaint or prima facie sufficient to proceed against the
accused. Magistrate need not enquire into merits or demerits of case. See: Fiona
Shrikhande Vs. State of Maharashtra, AIR 2014 SC 957.

11.4 Applying mind to the accusations in the FIR and material in the case diary
mandatory before taking cognizance: it is well settled that before a Magistrate
can be said to have taken cognizance of an offence, it is imperative that he must
have taken notice of the accusations and applied his mind to the allegations made in
the complaint or in the police report or the information received from a source other
than a police report, as the case may be, and the material filed therewith. It needs
little emphasis that it is only when the Magistrate applies his mind and is satisfied
that the allegations, if proved, would constitute an offence and decides to initiate
proceedings against the alleged offender, that it can be positively stated that he has
taken cognizance of the offence. Cognizance is in regard to the offence and not the
offender. Bearing in mind the above legal position, we are convinced that the High
Court was not justified in dismissing the petition on the aforestated ground. In our
opinion, in order to arrive at a conclusion, whether or not the appellant had made
out a case for quashing of the charge-sheet against him, the High Court ought to
have taken into consideration the material which was placed before the Magistrate.

Page 16 of 20
 For dismissal of the petition, the High Court had to record a finding that the
uncontroverted allegations, as made, establish a prima facie case against the
appellant. In our judgment, the decision of the High Court dismissing the petition
filed by the appellant on the ground that it is not permissible for it to look into the
materials placed before the Magistrate is not in consonance with the broad
parameters, enumerated in a series of decisions of this Court and as briefly noted
above to be applied while dealing with a petition under Section 482 of the CrPC for
discharge and, therefore, the impugned order is unsustainable. See:
(i) Fakhruddin Ahmad Vs. State of Uttaranchal , (2008) 17 SCC 157 (Paras 17
& 21).
(ii) Judgment dated 08.03.2021 of the Jharkhand High Court passed in Cr.
M.P. No.2755 of 2020, Mithilesh Prasad Singh Vs. The State of Jharkhand
through A.C.B., High Court of Jharkhand at Ranchi.

11.5 Summoning order passed by Magistrate in complaint case must reflect

application of mind: Summoning order passed by Magistrate in complaint case
must reflect application of mind. See: M/S GHCL Employees Stock Option Trust
Vs. M/S India Infoline Ltd., AIR 2013 SC 1433.

11.6 Recording of reasons by Magistrate in summoning order u/s 204 CrPC

mandatory otherwise order to be set aside: Recording of reasons by Magistrate
in summoning order u/s 204 CrPC is mandatory otherwise the summoning order
would be set aside. See: Sunil Bharti Mittal Vs. CBI, AIR 2015 SC 923 (Three-
Judge Bench).

11.7 Assigning reasons must even when complaint is dismissed in part in respect of
some of many accused or in respect of some of many offences: In the cases
of while dismissing complaint u/s 203 Cr PC, Magistrate is required to assign

Page 17 of 20
 reasons even when the dismissal is in part in respect of some of many accused or in
respect of some of many offences. See:
(i). Dr. Mathew Abraham Vs. V. Gopal Krishnan, 2008 CrLJ 2686 (Kerala )
(ii). Prakasan Vijaya Nivas Vs. State of Kerala, 2008 CrLJ 1272 (Kerala)

11.8 Truth of allegations in complaint not to be gone into at the stage of

cognizance: At the stage of taking cognizance of offences in a complaint case, it is
impermissible to go into the truthfulness or otherwise of the allegations made in the
complaint and one has to proceed on a footing that the allegations made are true.
See: Gambhirsinh R.Dekare Vs. Fhalgunbhai Chimanbhai Patel, AIR 2013 SC
1590.
(In this case Editor of the news paper and the journalist both were held guilty in
complaint case for publishing defamatory matter and provisions of Press and
Registration of Books Act, 1867 were involved therein).

11.9 Extent of scrutiny of evidence at the stage of passing summoning order in

complaint cases: At the stage of issuing process the Magistrate is mainly concerned
with the allegations made in the complaint or the evidence led in support of the same
and he is only to be prima facie satisfied whether there are sufficient grounds for
proceeding against the accused. It is not the province of the magistrate to enter into
a detailed discussion of the merits or the de_merits of the case. In other words, the
scope of enquiry u/s 202 is limited to finding out the truth or false hood of the
complaint in order to determine the question of the issue of the process. The enquiry
is for the purpose of ascertaining the truth or falsehood of the complaint i.e. for
ascertaining whether there is evidence in support of the complaint so as to justify
the issue of process and commencement of proceedings against the person
concerned. The section does no say that a regular trial for adjudging the guilt or
otherwise, of the person complained against should take place at the stage, for the
person complained against can be legally called upon to answer the accusation made

Page 18 of 20
 against him only when a process has issued and he is put on trial. It will be clear
from the above that the scope of enquiry u/s 202 of the Cr PC is extremely limited—
limited only to the ascertainment of the truth of falsehood of the allegations made
complaint_(i) on the material placed by the complaint before the court, (ii) for the
limited purpose of finding out whether prima facie case for issue of process has been
made out, and (iii) for deciding the question purely from the point of view of the
complaint without at all adverting to any defence that the accused may have. In fact
is well settled that in proceeding u/s 202 the accused has got absolutely no locus-
standi and is not entitled to be heard on the question whether the process should be
issued against him or not. Therefore at the stage of Sec. Cr PC as the accused has
no locus-standi the magistrate has absolutely no jurisdiction to go into any materials
or evidence which may be produced by the accused, who may be present only to
watch the proceedings and not to participate in them. Indeed, if the documents or
the evidence produced by the accused are allowed to be taken by the magistrate,
then an inquiry u/s 202 convert into a full dress trial defeating the very object for
which this section has been engrafted. See: Nagawwa Vs. Veeranna
Shivalingappa Nonjalgi, 1976 SCCr R 313 (SC)

11.10 No meticulous evaluation of evidence by Magistrate at the time of passing

summoning order in complaint case: At the stage of issuing process the
Magistrate is mainly concerned with the allegations made in the complaint or the
evidence led in support of the same and he is only to be prima facie satisfied whether
there are sufficient grounds for proceeding against the accused. It is not the province
of the magistrate to enter into a detailed discussion of the merits or the de_merits of
the case. In other words, the scope of enquiry u/s 202 is limited to finding out the
truth or false hood of the complaint in order to determine the question of the issue
of the process. The enquiry is for the purpose of ascertaining the truth or falsehood
of the complaint i.e. for ascertaining whether there is evidence in support of the
complaint so as to justify the issue of process and commencement of proceedings

Page 19 of 20
against the person concerned. The section does no say that a regular trial for
adjudging the guilt or otherwise, of the person complained against should take place
at the stage, for the person complained against can be legally called upon to answer
the accusation made against him only when a process has issued and he is put on
trial. It will be clear from the above that the scope of enquiry u/s 202 of the Cr PC
is extremely limited—limited only to the ascertainment of the truth of falsehood of
the allegations made complaint_(i) on the material placed by the complaint before
the court, (ii) for the limited purpose of finding out whether prima facie case for
issue of process has been made out, and (iii) for deciding the question purely from
the point of view of the complaint without at all adverting to any defence that the
accused may have. In fact is well settled that in proceeding u/s 202 the accused has
got absolutely no locus-standi and is not entitled to be heard on the question whether
the process should be issued against him or not. Therefore at the stage of Sec. Cr
PC as the accused has no locus-standi the magistrate has absolutely no jurisdiction
to go into any materials or evidence which may be produced by the accused, who
may be present only to watch the proceedings and not to participate in them. Indeed,
if the documents or the evidence produced by the accused are allowed to be taken
by the magistrate, then an inquiry u/s 202 convert into a full dress trial defeating the
very object for which this section has been engrafted. See: Nagawwa Vs. Veeranna
Shivalingappa Nonjalgi, 1976 SCCr R 313 (SC)

******

Page 20 of 20