Magistrate Power

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Magistrate power to take cognizance of the offence

After the stage of investigation is completed and the final report is forwarded by the police to competent magistrate, the second stage of fair trial begins that is taking of the cognizance of the offence by the magistrate. In this stage some of the necessary steps have to be take place. These steps are: -

(i)to take cognizance of the offence,
(ii)then the magistrate enquire that whether any prima facia case exist against the accused person and if it exist then, (iii)to issue process against the accused person in order to secure his presence at the time of trial, (iv)to supply to the accused person the copies of police statement.

Cognizance of the offence: -

Meaning: -
In the Criminal Procedure Code the term 'Cognizance of the offence' is not defined but taking the cognizance of the offence is the first step towards the trial. The literally meaning of Cognizance is knowledge or notice and the taking cognizance of offence means taking notice or becoming aware of the commission of the offence.

But the meaning of this expression is now well settled by the Courts. Taking cognizance does not involve any formal action of any kind but it occurs as soon as a magistrate applies his mind to the commission of the offence for the purpose of proceedings to take steps towards the Inquiry or Trial. It also includes intention of intention of initiating a judicial proceedings against an offender in respect of an offence.

By whom the Cognizance of the offence is taken: -

Under Section 190 of the Code, any magistrate of first class may take cognizance of any offence and any magistrate of second class, if specially empowered by the Chief Judicial Magistrate, may take the cognizance of the offence. But the court of session is not to take the cognizance of the offence directly as it is under the original jurisdiction unless the case is given to it by the magistrate.

When the cognizance is taken: -

A magistrate take the cognizance of the offence: -

(i)upon receiving a complaint of facts which constitute such offence. (ii)upon a police report of such facts,
(iii)upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed

The word 'Complaint' mentioned in the above paragraph is defined under the Section 2(d) of the Code as: -

'any allegation made orally or in writing to a magistrate with a view to his taking action under this Code, that some person whether known or unknown has committed an offence, but it does not include a police report.'

So ordinarily a private citizen intending to initiate criminal proceedings in respect of an offence has two ways open to him. He may give information to the police if the offence is cognizable one, or he may go to the magistrate and file a complaint irrespective of the fact that whether the offence is cognizable or noncognizable.

Now the question arises whether the magistrate is bound to take the cognizance in the above circumstances. In this the Supreme Court in the case of

Gopal Das V. State of Assam
(1961) 2 Cri L.J. 39

Observe that Section 190 of the Code does not means that once a complaint is filed, a magistrate is bound to take the cognizance of the offence if the facts stated in the complaint disclose the commission of any offence.

But it becomes necessary for the magistrate to consider the reports of the police before taking the cognizance in case the final report is made to the magistrate after the investigation by the police.

Transfer of case on the application of the accused: -

The magistrate may also take the cognizance of the offence upon his own knowledge or information. But Section 191 of the Code requires that the accused person must have to be inform before taking of any evidence that he is entitled to have the case inquired into or tried by another magistrate and if the accused objects the...
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