# Atmaram Yadav & Ors v. State of U.P. & Anr

- **Citation:** (2022) 7 ILRA 447
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-22
- **Case number:** Application U/S 482 No. 11118 of 2022
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atmaram-yadav-ors-v-state-of-u-p-anr-48898
- **Pages:** 35

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 323 & 504quashing of entire proceedings-When the
complaint is made in writing by a public
servant acting or purporting to act in the
discharge
of
his
official
duties,
the
Magistrate
need
not
examine
the
complainant and the witnesses before
proceeding with the matter and issuing
process-In a case where a report made by
a police officer is deemed to be a
complaint by virtue of the explanation to
Section 2(d) and the Magistrate proceeds
to take cognizance thereon u/s 190(1)(a),
treating it to be a complaint, and proceeds
to issue process without following the
procedure of examining the complainant
u/s 200 and the witnesses u/s 202 , the
issuance of process or summons cannot be
held to be vitiated-Moreso, there would be
no material change in the procedure of
trial and such the applicant cannot be said
to have been prejudiced by the order of
cognizance by the Magistrate, for this
reason also.(Para 1 to 57)

B. It is a cardinal principal of construction of
a statute that effort should be made in
construing the different provisions so that
each provision will have its play and in the
event
of
any
conflict
a
harmonious
construction should be given. The wellknown principle of harmonious construction
is that effect shall be given to all the
provisions and for that any provision of the
statute should be construed with reference
to the other provisions so as to make it
workable.(Para 50)

The application is rejected. (E-6)
List of Cases cited:

## Text

_Characters 0–39,895 of 113,222. This is a partial read: ask again with offset=39895 for what follows._

7 All. Atmaram Yadav & Ors. Vs. State of U.P. & Anr.
447
proceedings under sections 420, 467, 468,
471 I.P.C. and Section 63 of Copy Right
Act, 1957 also but as no prayer regarding
quashing of charge sheet, cognizance order
or entire proceedings regarding these
sections is made by the applicant so there is
no need to discuss the allegations regarding
these sections.

19. So far as the prayer regarding
quashing of Non Bailable Warrants dated
19.04.2022 and 10.04.2022 against the
applicant are concerned, the jurisdiction of
recalling or cancelling the warrant rests
with the trial court. In this regard, the
prayer
of
the
applicant
is
rejected,
otherwise also in the rest Sections i.e. 420,
467, 468, 471 I.P.C. and Section 63 Copy
Right Act, 1957 the applicant has been
bailed out by this Court vide order dated
27.10.2021.

20. As the present application under
Section 482 Cr.P.C. is being disposed of, so
the question of staying further proceedings
of the trial court in Case No. 117543 of
2021 above during pendency of the present
criminal application does not arise.

21. The application under Section 482
Cr.P.C. is, thus, partly allowed.
----------
(2022)07ILR A447
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.06.2022

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 No. 11118 of 2022

Atmaram Yadav & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Vipul Shukla

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 323 & 504quashing of entire proceedings-When the
complaint is made in writing by a public
servant acting or purporting to act in the
discharge
of
his
official
duties,
the
Magistrate
need
not
examine
the
complainant and the witnesses before
proceeding with the matter and issuing
process-In a case where a report made by
a police officer is deemed to be a
complaint by virtue of the explanation to
Section 2(d) and the Magistrate proceeds
to take cognizance thereon u/s 190(1)(a),
treating it to be a complaint, and proceeds
to issue process without following the
procedure of examining the complainant
u/s 200 and the witnesses u/s 202 , the
issuance of process or summons cannot be
held to be vitiated-Moreso, there would be
no material change in the procedure of
trial and such the applicant cannot be said
to have been prejudiced by the order of
cognizance by the Magistrate, for this
reason also.(Para 1 to 57)

B. It is a cardinal principal of construction of
a statute that effort should be made in
construing the different provisions so that
each provision will have its play and in the
event
of
any
conflict
a
harmonious
construction should be given. The wellknown principle of harmonious construction
is that effect shall be given to all the
provisions and for that any provision of the
statute should be construed with reference
to the other provisions so as to make it
workable.(Para 50)

The application is rejected. (E-6)
List of Cases cited:

1. Mahendra Kumar Chaudhary & ors. Vs St. of
U.P. & anr.(2022) 118 ACC 212
448 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Pepsi Foods Ltd. Vs Spl. Judicial Magistrate
(1998) 5 SCC 749

3. Pradeep S. Wodeyar Vs The St. of Karn.
(2021) SCC OnLine SC 1140

4. Keshab Lal Thakur Vs St. of Bih.(1996) 11
SCC 55

5. Darshan Singh Ram Kishan Vs St. of Mah.
(1971) 2 SCC 654

6. S.K. Sinha, CEO, Vs Videocon International
Ltd.(2008) 2 SCC 492

7. Supdt. & Remembrancer of Legal Affairs Vs
Abani Kumar Banerjee (1950) AIR Cal 437

8. R.R.Chari Vs St. of U.P.(1951) AIR SC 207

9. Narayandas Bhagwandas Madhavdas Vs St. of
W.B.(1959) AIR SC 1118

10. Gopal Das Sindhi Vs St. of Assam(1961) AIR
SC 986

11. Nirmaljit Singh Hoon Vs St. of W.B.(1973) 3
SCC 753

12. Devarapalli Laxminarayana Reddy Vs V.
Narayana Reddy(1976) 3 SCC 252

13. Fakhruddin Ahmad Vs St. of Uttaranchal &
anr.(2008) 17 SCC 157

14. Ajit Kumar Palit Vs St. of W.B.(1963) AIR SC
765

15. Emperor Vs Sourindra Mohan Chuckerbutty
(1910) ILR 37 Cal 412

16. Subramanian Swamy Vs Manmohan Singh &
anr. (2012) 3 SCC 64

17. St. of W.B. Vs Mohd. Khalid (1995) 1 SCC
684

18. St. of Karn. & anr. Vs Pastor P.Raju (2006) 6
SCC 728

19. Kanti Bhadra Shah & anr. Vs The St. of
W.B.(2000) 1 SCC 722

20. U.P. Pollution Control Board Vs Mohan
Meakins Ltd. & ors. (2000) 3 SCC 745

21. Rajesh Talwar Vs CBI Delhi & anr.(2012) 4
SCC 245

22. Bhushan Kumar & anr. Vs St. (NCT of Delhi)
& anr.(2012) 5 SCC 424

23.
Nagawwa
Vs
Veeranna
Shivalingappa
Konjalgi (1976) 3 SCC 736

24. Chief Controller of Imports & Exports Vs
Roshanlal Agarwal (2003) 4 SCC 139

25. U.P. Pollution Control Board Vs Bhupendra
Kumar Modi (2009) 2 SCC 147

26. Sunil Bharti Vs CBI (2015) 4 SCC 609

27. St. of Guj. Vs Afroz Mohammed Hasanfatta
(2019) 20 SCC 539

28. Mehmood Ul Rehman Vs Khazir Mohammad
Tunda (2015) 12 SCC 420

29. Raj Kumar Agarwal Vs St. of U.P.(1999) SCC
OnLine All 1394

30. Ali M.K. & ors. Vs St. of Ker. & ors. (2003)
11 SCC 632

31. Levy,Re, ex p Walton, James L.J. (1881) 17
Ch D 746 : 50 LJ Ch 657: 45 LT 1 CA

32. Hill Vs East & West India Dock Co. (1884) 9
AC 448: 53 LJ Ch 842: 51 LT 163 HL

33. St. of Travancore Cochin Vs Shanmugha
Vilas Cashewnut Factory (1953) AIR SC 333

34. American Home Products Corpn. Vs Mac
Laboratories (P) Ltd (1986) 1 SCC 465

35. Parayankandiyal Eravath Kanapravan Kalliani
Amma Vs Devi (1996) 4 SCC 76

36. East End Dwellings Co. Ltd. Vs Finsbury
Borough Council (1951) 2 All ER 587 HL

37. St. Aubyn (L.M.) Vs Attorney-General (No.2)
(1951) 2 All ER 473: 1952 AC 15 HL
7 All. Atmaram Yadav & Ors. Vs. State of U.P. & Anr.
449
38. Hunter Douglas Australia Pty. Vs Perma
Blinds (1970) 44 Aust LJ R 257, Per Windener,
J.

39. R. Vs Norfolk County Court, (1891) 60 LJ QB
379 : 65 LT 22

40. Ferguson Vs McMillan (1954) SLT 109, Per
Lord President Cooper

41. St. Leon Village Consolidated School Distt.
Vs Ronceray (1960) 23 DLR 2d 32

42. Barclays Bank Vs IRC (1961) AC 509 HL, Per
Viscount Simonds

43. R. Vs Brixton Prison (Gov.), ex p Soblen
(1962) 3 All ER 641 : (1963) 2 QB 243 : (1962)
3 WLR 1154 CA

44. Nupur Talwar Vs C.B.I. & anr. (2012) 11 SCC
465

45. Pradeep S. Wodeyar Vs The St. of Karn.
(2021) SCC OnLine SC 1140

46. A.R. Antulay Vs Ramdas Sriniwas Nayak &
anr.(1984) 2 SCC 500

47. Santhosh De Vs Archana Guha,(1994) AIR
SC 1229

48. Badri Prasad & ors. Vs St. of U.P. &
anr.(2022) 1 ADJ 39

49. Sultana Begum Vs Prem Chand Jain (1997)
1 SCC 373

50. Commr. of Income Tax Vs Hindustan Bulk
Carriers (2003) 3 SCC 57

51. Satendra Kumar Antil Vs C.B.I. & anr.(2021)
10 SCC 773
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Vipul Shukla, learned
counsel for the applicants and Sri Pankaj
Saxena, learned Additional Government
Advocate-I for the State-opposite party.

2. The present application under
Section 482 CrPC has been filed with a
prayer for quashing of the charge-sheet no.
262 of 2020 dated 19.07.2020, the
cognizance order dated 25.02.2021 and
entire proceedings of Case No. 14457 of
2021 pending in the court of Additional
Chief Metropolitan Magistrate III, Kanpur
Nagar (State Vs. Atmaram Yadav and
others) in Case Crime No. 249 of 2020
under Sections 323, 504 IPC, P.S. Vidhnu,
District Kanpur Nagar insofar as it relates
to the applicants.

3. The facts as pleaded in the
application are to the effect that an FIR No.
0249 was registered on 01.06.2020 under
Sections 379, 323, 504 Indian Penal Code1
at P.S. Vidhnu, District Kanpur Nagar in
which the applicants herein were named as
accused. The case was investigated by the
police and charge-sheet no. 262 of 2020
was
submitted
on
19.07.2020
under
Sections 323, 504 IPC whereupon the Chief
Metropolitan Magistrate III, Kanpur Nagar
passed
an
order
of
cognizance
on
25.02.2021.

4. Apart from raising contentions
which are factual in nature and would relate
to examining the defence of the applicants,
the principal grounds urged by counsel for
the applicants to seek quashing of the
proceedings are as follows :

4.1 The FIR having been lodged
in respect of cognizable offences under
Sections 379, 323, 504 IPC and upon
investigation the charge-sheet having been
filed only under Sections 323, 504 IPC,
which are offences of non-cognizable
nature, the case would be covered by the
explanation to Section 2 (d) of the Code of
Criminal Procedure2 and it would be
deemed
to
be
a
compliant.
As
a
450 INDIAN LAW REPORTS ALLAHABAD SERIES
consequence cognizance ought to be taken
by the Magistrate under Section 190 (1) (a)
CrPC and not under Section 190 (1) (b). In
support of his submissions, learned counsel
places reliance upon the judgment in the
case of Mahendra Kumar Chaudhary
and others Vs. State of U.P. and
another3.

4.2 The order passed by the
Magistrate taking cognizance is not a
reasoned order as is the requirement as per
the law laid down in the case of Pepsi
Foods
Ltd.
Vs.
Special
Judicial
Magistrate4.

5. Controverting the aforestated
submissions,
learned
Additional
Government Advocate-I appearing for the
State-opposite party submits as under :

5.1
The
FIR
having
been
registered in respect of offences of a
cognizable
nature
the
same
was
investigated by the police and a report
having been submitted disclosing offences
under Section 323, 504 IPC which are of a
non-cognizable nature the report would be
deemed to be a complaint as per the
explanation to Section 2 (d). Referring to
the proviso to Section 200 CrPC, it is
submitted that the complaint having been
made by a police officer, who is a public
servant acting in the discharge of his
official duties, the Magistrate while taking
cognizance under Section 190 (1) (a) was
not required to examine the complainant
and witnesses. It is submitted that since
cognizance has been taken on a police
report treating the same to be a deemed
complaint, no reasons are required to be
assigned for the purpose.

5.2 The case having been duly
investigated and a report having been
submitted, the order of cognizance even if
held to be referable to Section 190 (1) (b),
the same cannot be said to have led to a
failure of justice since in a summons case
as per the procedure prescribed under the
Code there is no distinction with regard to
the manner in which the trial is to proceed
between cases instituted on a police report
and those instituted otherwise than on a
police report; this is more so for the reason
that Section 465 is also applicable to
challenges to interlocutory orders such as a
cognizance order or summons order.

5.3. No prejudice having been
caused to the applicants with regard to the
procedure the order taking cognizance even
if it is held to be vitiated would be a mere
irregularity and as per Sections 461 and
462 the proceedings would not be vitiated.
It is pointed out that an order taking
cognizance based on a police report has
been given a greater standing as compared
to an order taking cognizance based on an
information of any person other than a
police officer for the purpose of deciding
on the irregularity of the order. Reliance
has been placed upon the decision in
Pradeep S. Wodeyar vs. The State of
Karnataka5.

6.

The
provisions
relating
to
information to the police and their powers
to investigate are contained under Chapter
XII of the Code of Criminal Procedure,
1973. Section 154 of the Code provides for
the manner of giving information to an
officer in-charge of the police station
relating to commission of a cognizable
offence, and the manner in which the same
is to be reduced in writing and entered in a
book maintained for the purpose. Section
155 of the Code relates to giving of
information as to non-cognizable cases and
investigation of such cases. Sub-section (1)
thereof, provides that when information is
7 All. Atmaram Yadav & Ors. Vs. State of U.P. & Anr.
451
given to an officer in-charge of a police
station of the commission within the limits
of such station of a non-cognizable offence,
he shall enter it in the prescribed book and
refer the informant to the Magistrate. Subsection (2) states that no police officer shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such cases or commit the case for trial.
As per sub-section (3), any police officer
receiving such order may exercise the same
powers in respect of the investigation as an
officer in charge of a police station may
exercise in a cognizable case, except the
power to arrest without warrant.

7. In terms of Section 156(1) of the
Code, any officer in-charge of a police
station may investigate any cognizable
offence, without the order of a Magistrate.
Sub-section (3) of Section 156 provides
that any Magistrate empowered under
Section 190 may order an investigation.

8. Section 173 of the Code, as per
terms of sub-section (1) and sub-section (2)
thereof, lays down that every investigation
under Chapter XII shall be completed
without
unnecessary
delay
and
on
completion the officer in charge of the
police
station
shall
forward
to
the
Magistrate empowered to take cognizance
of the offence on a police report, a report in
the prescribed form setting forth the
required particulars.

9. Section 190 of the Code relates to
cognizance of offences by Magistrates and
falls under Chapter XIV, which is in
respect of conditions requisite for initiation
of proceedings. Section 190 of the Code
lays down that the concerned Magistrate
may take cognizance of any offence in
three contingencies, namely; (a) upon
receiving a complaint of facts which
constitute such offence, (b) upon a police
report of such facts, and (c) upon
information received from any person other
than a police officer or upon his own
knowledge, that such offence has been
committed.

10.

Section
2(d)
alongwith
explanation, as it finds place under the
Code, is as follows:-

"(d)
"complaint"
means
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 does not include a police
report.

Explanation.--A report made by a
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed to
be a complaint; and the police officer by
whom such report is made shall be deemed
to be the complainant;"

11. The legislative changes brought in
the definition of "complaint" and the
insertion of the explanation made it clear
that the report made by a police officer will
be deemed to be a complaint only if the
offence is discovered, after investigation by
the police, to be a non-cognizable one. The
explanation clearly states that a report by a
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed to
be a complaint; and the police officer by
whom such report is made shall be deemed
to be a complainant.

12. The scope of the explanation to
Section 2 (d) was considered in the case of
Keshab Lal Thakur Vs. State of Bihar6
452 INDIAN LAW REPORTS ALLAHABAD SERIES
and it was observed that the explanation
would be available only in a case where the
police
initiates
investigation
into
a
cognizable offence but ultimately finds that
only a non-cognizable offence has been
made out.

13. The interpretation of the provisions
contained under Section 2 (d) and the
explanation appended to the section have been
considered in extenso in a recent decision of
this Court in Mahendra Kumar Chaudhary
and others vs. State of U.P. and another3
and after examining the provision as it existed
under the old Code7 and as it presently stands
with the enforcement of the new Code8 and
also referring to the legislative history and the
Law Commission Report9 the following three
cases were held to be illustrative.

"Case I. where the police report
has been submitted following investigation in
a non-cognizable case without conforming to
the provisions of sub-section (2) of Section
155;

Case
II.
where
the
police
investigates a case relating to a cognizable
offence, which discloses, after investigation,
the commission of a non-cognizable offence;

Case III. where a non-cognizable
offence is reported and upon an order by the
Magistrate under sub-section (2) of Section
155, the same is investigated, and the police
report which is submitted also discloses noncognizable offence."

14. The alternative situations which
would
emerge
in
respect
of
the
aforementioned three cases were described as
follows :-

"39.1. In Case I where the police
report has been submitted following
investigation in a non-cognizable case
without conforming to the provisions of
sub-section (2) of Section 155, the same
would be deemed to be a complaint.

39.2. In Case II where the police
investigates a case relating to a cognizable
offence,
which
discloses,
after
investigation, the commission of a noncognizable offence, the same would also be
deemed to be a complaint by virtue of the
explanation to Section 2 (d).

39.3. In Case III where a noncognizable offence is reported and upon an
order by the Magistrate under sub-section
(2) of Section 155, the same is investigated
and the police report, which is submitted,
also discloses non-cognizable offence, the
same would not be covered within the
purview of the explanation to Section 2 (d)
to bring it within the ambit of the term
'complaint'. "

15. It was thereafter held that the
explanation takes within its sweep only a
case, where at the stage of commencement
of the investigation commission of a
cognizable offence is alleged or where it is
doubtful as to whether it relates to a
cognizable or a non-cognizable offence,
and the investigation discloses only the
commission of a non-cognizable offence;
other
categories,
stand
excluded
by
necessary implication.

16. The present being a case where
the FIR having been initially registered in
respect of offences of cognizable nature
and after investigation the report which was
submitted having disclosed offences of a
non-cognizable nature, the explanation to
Section 2 (d) would stand attracted and the
report made by the police officer shall be
deemed to be a complaint and the police
7 All. Atmaram Yadav & Ors. Vs. State of U.P. & Anr.
453
officer by whom the report has been made
shall be deemed to be a complainant.

17. A question would therefore arise
as to whether the order of cognizance by
the Magistrate on the basis of the report,
which in the instant case would have to be
held to be a deemed complaint by virtue of
the explanation to Section 2 (d), can be
held to be irregular or vitiated.

18. In order to answer the aforestated
question it would be necessary to examine
the meaning and purport of the expression
"taking cognizance of an offence".

19. The question as to when
cognizance of an offence can be held to
have been taken under Section 190 of the
Code came up for consideration in
Darshan Singh Ram Kishan Vs. The
State of Maharashtra10, where it was
held that cognizance takes place at a point
when a Magistrate first takes judicial notice
of an offence, whether on a complaint, or
on a police report, or upon information of a
person other than a police officer. The
observations made in the judgment in this
regard are as follows :-

"8. As provided by Section 190 of
the Code of Criminal Procedure, a
Magistrate may take cognizance of an
offence either, (a) upon receiving a
complaint, or (b) upon a police report, or
(c) upon information received from a
person other than a police officer or even
upon his own information or suspicion that
such an offence has been committed. As
has often been held, taking cognizance does
not involve any formal action or indeed
action of any kind but occurs as soon as a
Magistrate
applies
his
mind
to
the
suspected commission of an offence.
Cognizance, therefore, takes place at a
point when a Magistrate first takes judicial
notice of an offence. This is the position
whether the Magistrate takes cognizance of
an offence on a complaint, or on a police
report, or upon information of a person
other than a police officer. Therefore, when
a Magistrate takes cognizance of an offence
upon a police report, prima facie he does so
of the offence or offences disclosed in such
report."

20. The meaning of the word
''cognizance' and the point in time and
determination of occurrence of cognizance
together with its distinction with ''issuance
of process' was explained in S.K.Sinha,
Chief Enforcement Officer Vs. Videocon
International Limited11, and it was held
that ''cognizance' connotes to take notice
judicially and it occurs simultaneously with
the application of mind by the court or
Magistrate to the suspected commission of
an
offence.
The
question
whether
cognizance of an offence was taken or not
depends upon the facts and circumstances
of each case and no rule of universal
application can be laid down to determine
it. Referring to the earlier decisions in
Supdt. & Remembrancer of Legal
Affairs v. Abani Kumar Banerjee12,
R.R.
Chari
v.
State
of
U.P.13,
Narayandas Bhagwandas Madhavdas v.
State of W.B.14, Gopal Das Sindhi v.
State of Assam15, Nirmaljit Singh Hoon
v. State of W.B.16, Darshan Singh Ram
Kishan v. State of Maharashtra10, and
Devarapalli Lakshminarayana Reddy v.
V. Narayana Reddy17, it was observed as
follows :-

"19. The expression "cognizance"
has not been defined in the Code. But the
word (cognizance) is of indefinite import. It
has no esoteric or mystic significance in
criminal law. It merely means "become
454 INDIAN LAW REPORTS ALLAHABAD SERIES
aware of" and when used with reference to
a court or a Judge, it connotes "to 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.

20. "Taking cognizance" does not
involve any formal action of any kind. It
occurs as soon as a Magistrate applies his
mind to the suspected commission of an
offence. Cognizance is taken prior to
commencement of criminal proceedings.
Taking of cognizance is thus a sine qua non
or condition precedent for holding a valid
trial. Cognizance is taken of an offence and
not of an offender. Whether or not a
Magistrate has taken cognizance of an
offence
depends
on
the
facts
and
circumstances of each case and no rule of
universal application can be laid down as to
when a Magistrate can be said to have
taken cognizance.

21. Chapter XIV (Sections 190199) of the Code deals with "Conditions
requisite for initiation of proceedings".
Section 190 empowers a Magistrate to take
cognizance of an offence in certain
circumstances...

22. Chapter XV (Sections 200203) relates to "Complaints to Magistrates"
and
covers
cases
before
actual
commencement of proceedings in a court
or before a Magistrate. Section 200 of the
Code
requires
a
Magistrate
taking
cognizance of an offence to examine the
complainant and his witnesses on oath.
Section 202, however, enacts that a
Magistrate is not bound to issue process
against the accused as a matter of course. It
enables him before the issue of process
either to 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 there is sufficient ground for
proceeding further. The underlying object
of the inquiry under Section 202 is to
ascertain whether there is prima facie case
against the accused. It thus allows a
Magistrate to form an opinion whether the
process should or should not be issued. The
scope of inquiry under Section 202 is, no
doubt, extremely limited. At that stage,
what a Magistrate is called upon to see is
whether there is sufficient ground for
proceeding with the matter and not whether
there is sufficient ground for conviction of
the accused.

23. Then comes Chapter XVI
(Commencement of proceedings before
Magistrates). This Chapter will apply only
after cognizance of an offence has been
taken by a Magistrate under Chapter XIV.
Section 204, whereunder process can be
issued, is another material provision...

24. From the above scheme of the
Code, in our judgment, it is clear that
"Initiation of proceedings", dealt with in
Chapter
XIV,
is
different
from
"Commencement of proceedings" covered
by Chapter XVI. For commencement of
proceedings, there must be initiation of
proceedings. In other words, initiation of
proceedings must precede commencement
of proceedings. Without initiation of
proceedings under Chapter XIV, there
cannot be commencement of proceedings
before a Magistrate under Chapter XVI.
The High Court, in our considered view,
was not right in equating initiation of
proceedings under Chapter XIV with
commencement
of
proceedings
under
Chapter XVI.
7 All. Atmaram Yadav & Ors. Vs. State of U.P. & Anr.
455

25. Let us now consider the
question
in
the
light
of
judicial
pronouncements on the point.

26. In Supdt. & Remembrancer
of Legal Affairs v. Abani Kumar
Banerjee12 the High Court of Calcutta had
an occasion to consider the ambit and scope
of the phrase "taking cognizance" under
Section 190 of the Code of Criminal
Procedure, 1898 which was in pari materia
with Section 190 of the present Code of
1973. Referring to various decisions, Das
Gupta, J. (as His Lordship then was) stated:
(AIR p. 438, para 7)

"7. ... What is ''taking cognizance'
has not been defined in the Criminal
Procedure Code, and I have no desire now
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) CrPC, 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 enquiry 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."

27. R.R. Chari v. State of
U.P.13, was probably the first leading
decision of this Court on the point. There,
the police, having suspected the appellantaccused to be guilty of offences punishable
under Sections 161 and 165 of the Penal
Code (IPC) as also under the Prevention of
Corruption Act, 1947, applied to the
District
Magistrate,
Kanpur
to
issue
warrant of arrest on 22-10-1947. Warrant
was issued on the next day and the accused
was arrested on 27-10-1947.

28. On 25-3-1949, the accused
was produced before the Magistrate to
answer the charge-sheet submitted by the
prosecution. According to the accused, on
22-10-1947, when warrant for his arrest
was
issued
by
the
Magistrate,
the
Magistrate
was
said
to
have
taken
cognizance of offence and since no
sanction of the Government had been
obtained before that date, initiation of
proceedings against him was unlawful. The
question before the Court was as to when
cognizance of the offence could be said to
have been taken by the Magistrate under
Section 190 of the Code. Considering the
circumstances under which "cognizance of
offence" under sub-section (1) of Section
190 of the Code can be taken by a
Magistrate and referring to Abani Kumar
Banerjee12, the Court, speaking through
Kania, C.J. stated: (Chari13 case, p. 208,
para 3)

"3. It is clear from the wording of
the section that the initiation of the
proceedings against a person commences
on the cognizance of the offence by the
Magistrate
under
one
of
the
three
contingencies mentioned in the section.
The first contingency evidently is in respect
of non-cognizable offences as defined in
CrPC on the complaint of an aggrieved
person. The second is on a police report,
which evidently is the case of a cognizable
offence when the police have completed
their investigation and come to the
Magistrate for the issue of a process. The
456 INDIAN LAW REPORTS ALLAHABAD SERIES
third is when the Magistrate himself takes
notice of an offence and issues the
process..."

29. Approving the observations
of Das Gupta, J. in Abani Kumar
Banerjee12, this Court held that it was on
25-3-1949 when the Magistrate issued a
notice under Section 190 of the Code
against
the
accused
that
he
took
"cognizance" of the offence. Since before
that day, sanction had been granted by the
Government, the proceedings could not be
said to have been initiated without
authority of law.

30.
Again
in
Narayandas
Bhagwandas Madhavdas v. State of
W.B.14 this Court observed that when
cognizance is taken of an offence depends
upon the facts and circumstances of each
case and it is impossible to attempt to
define what is meant by taking cognizance.
Issuance of a search warrant for the
purpose of an investigation or a warrant of
arrest of the accused cannot by itself be
regarded as an act of taking cognizance of
an offence. It is only when a Magistrate
applies his mind for proceeding under
Section 200 and subsequent sections of
Chapter XV or under Section 204 of
Chapter XVI of the Code that it can be
positively stated that he had applied his
mind and thereby had taken cognizance of
an offence (see also Ajit Kumar Palit v.
State of W.B.18, and Hareram Satpathy
v. Tikaram Agarwala19.

31. In Gopal Das Sindhi v. State
of Assam15, referring to earlier judgments,
this Court said:(AIR p. 989, para 7)

"7...We
cannot
read
the
provisions of Section 190 to mean that once
a complaint is filed, a Magistrate is bound
to take cognizance if the facts stated in the
complaint disclose the commission of any
offence. We are unable to construe the
word ''may' in Section 190 to mean ''must'.
The reason is obvious. A complaint
disclosing cognizable offences may well
justify
a
Magistrate
in
sending
the
complaint, under Section 156(3) to the
police for investigation. There is no reason
why the time of the Magistrate should be
wasted when primarily the duty to
investigate in cases involving cognizable
offences is with the police. On the other
hand, there may be occasions when the
Magistrate may exercise his discretion and
take cognizance of a cognizable offence. If
he does so then he would have to proceed
in the manner provided by Chapter XVI of
the Code."

32. In Nirmaljit Singh Hoon v.
State of W.B.16, the Court stated that it is
well settled that before a Magistrate can be
said to have taken cognizance of an offence
under Section 190(1)(a) of the Code, he
must have not only applied his mind to the
contents of the complaint presented before
him, but must have done so for the purpose
of proceeding under Section 200 and the
provisions following that section. Where,
however, he applies his mind only for
ordering an investigation under Section
156(3) or issues a warrant for arrest of the
accused, he cannot be said to have taken
cognizance of the offence.

33. In Darshan Singh Ram
Kishan v. State of Maharashtra10,
speaking for the Court, Shelat, J. stated that
under Section 190 of the Code, a
Magistrate may take cognizance of an
offence either (a) upon receiving a
complaint, or (b) upon a police report, or
(c) upon information received from a
person other than a police officer or even
7 All. Atmaram Yadav & Ors. Vs. State of U.P. & Anr.
457
upon his own information or suspicion that
such an offence has been committed. As
has often been said, taking cognizance does
not involve any formal action or indeed
action of any kind. It occurs as soon as a
Magistrate
applies
his
mind
to
the
suspected commission of an offence.
Cognizance, thus, takes place at a point
when a Magistrate first takes judicial notice
of an offence.

34.
In
Devarapalli
Lakshminarayana Reddy v. V. Narayana
Reddy17, this Court said: (SCC p. 257,
paras 13-14)

"13. It is well settled that when a
Magistrate receives a complaint, he is not
bound to take cognizance if the facts
alleged in the complaint, disclose the
commission of an offence. This is clear
from the use of the words ''may take
cognizance' which in the context in which
they occur cannot be equated with ''must
take cognizance'. The word ''may' gives a
discretion to the Magistrate in the matter. If
on a reading of the complaint he finds that
the allegations therein disclose a cognizable
offence
and
the
forwarding
of
the
complaint to the police for investigation
under Section 156(3) will be conducive to
justice and save the valuable time of the
Magistrate from being wasted in enquiring
into a matter which was primarily the duty
of the police to investigate, he will be
justified in adopting that course as an
alternative to taking cognizance of the
offence, himself.

14. This raises the incidental
question: What is meant by ''taking
cognizance of an offence' by a Magistrate
within the contemplation of Section 190?
This expression has not been defined in the
Code. But from the scheme of the Code,
the content and marginal heading of
Section 190 and the caption of Chapter
XIV under which Sections 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
ways
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 Section 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 Section 190(1)(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 Section 156(3), he cannot
be said to have taken cognizance of any
offence." (emphasis supplied)

21. The meaning and connotation of
the expression 'taking cognizance' again
came up for consideration in Fakhruddin
Ahmad Vs. State of Uttaranchal and
another20, and it was held that the
expression being of indefinite import it was
neither practical nor desirable to precisely
define as to what is meant by ''taking
cognizance' and the question as to whether
the Magistrate has taken cognizance of an
offence
would
depend
upon
the
circumstances of the particular case,
including the mode in which the case is
458 INDIAN LAW REPORTS ALLAHABAD SERIES
sought to be instituted and the nature of
preliminary action. Taking note of the
earlier decisions in Ajit Kumar Palit v.
State of W.B.18, Emperor Vs. Sourindra
Mohan
Chuckerbutty21
Chief
Enforcement
Officer
v.
Videocon
International
Ltd.11
Supdt.
&
Remembrancer of Legal Affairs v. Abani
Kumar Banerjee12, and R.R. Chari v.
State of U.P.13, it was stated thus :-

"9. Before examining the rival
contentions, we may briefly refer to some
of the relevant provisions in the Code.
Chapter XIV of the Code, containing
Sections 190 to 199 deals with the statutory
conditions
requisite
for
initiation
of
criminal proceedings and as to the powers
of cognizance of a Magistrate. Sub-section
(1) of Section 190 of the Code empowers a
Magistrate to take cognizance of an offence
in the manner laid therein. It provides that a
Magistrate may take cognizance of an
offence either (a) upon receiving a
complaint of facts which constitute such
offence; or (b) upon a police report of such
facts; or (c) upon information received
from any person other than a police officer,
or upon his own knowledge that such
offence has been committed.

10.
Chapter
XV
containing
Sections 200 to 203 deals with "Complaints
to
Magistrates"
and
lays
down
the
procedure which is required to be followed
by the Magistrate taking cognizance of an
offence on complaint. Similarly, Chapter
XVI
deals
with
"Commencement
of
Proceedings before Magistrates". Since
admittedly, in the present case, the
Magistrate has taken cognizance of the
complaint in terms of Section 190 of the
Code, we shall confine our discussion only
to the said provision. We may, however,
note that on receipt of a complaint, the
Magistrate has more than one course open
to him to determine the procedure and the
manner to be adopted for taking cognizance
of the offence.

11. One of the courses open to the
Magistrate is that instead of exercising his
discretion and taking cognizance of a
cognizable offence and following the
procedure laid down under Section 200 or
Section 202 of the Code, he may order an
investigation to be made by the police
under Section 156(3) of the Code, which
the learned Magistrate did in the instant
case. When such an order is made, the
police is obliged to investigate the case and
submit a report under Section 173(2) of the
Code. On receiving the police report, if the
Magistrate is satisfied that on the facts
discovered or unearthed by the police there
is sufficient material for him to take
cognizance of the offence, he may take
cognizance of the offence under Section
190(1)(b) of the Code and issue process
straightaway to the accused. However,
Section 190(1)(b) of the Code does not lay
down that a Magistrate can take cognizance
of an offence only if the investigating
officer
gives
an
opinion
that
the
investigation makes out a case against the
accused. Undoubtedly, the Magistrate can
ignore the conclusion(s) arrived at by the
investigating officer.

12. Thus, it is trite that the
Magistrate is not bound by the opinion of
the
investigating
officer
and
he
is
competent to exercise his discretion in this
behalf, irrespective of the view expressed
by the police in their report and decide
whether an offence has been made out or
not. This is because the purpose of the
police report under Section 173(2) of the
Code, which will contain the facts
discovered or unearthed by the police as
7 All. Atmaram Yadav & Ors. Vs. State of U.P. & Anr.
459
well as the conclusion drawn by the police
therefrom is primarily to enable the
Magistrate to satisfy himself whether on
the basis of the report and the material
referred therein, a case for cognizance is
made out or not.

13. The next incidental question
is as to what is meant by the expression
"taking cognizance of an offence" by a
Magistrate within the contemplation of
Section 190 of the Code?

14. The expression "cognizance"
is not defined in the Code but is a word of
indefinite import. As observed by this
Court in Ajit Kumar Palit v. State of
W.B.18

"19... The word ''cognizance' has
no esoteric or mystic significance in
criminal law or procedure. It merely
means--become aware of and when used
with reference to a court or Judge, to take
notice of judicially."

Approving the observations of the
Calcutta High Court in Emperor v.
Sourindra Mohan Chuckerbutty21 (at
ILR p. 416), the Court said that

"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."

15. Recently, this Court in Chief
Enforcement
Officer
v.
Videocon
International Ltd.11 speaking through
C.K.