# Badri Prasad & Ors v. State of U.P. & Anr - **Citation:** (2022) 1 ILRA 366 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-12-14 - **Case number:** Application U/S 482 Cr.P.C. No. 12578 of 2021 - **Bench:** Dr. Yogendra Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badri-prasad-ors-v-state-of-u-p-anr-47690 - **Pages:** 35 ## Headnote (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Sections 173,190(1)(b),193,200,202,203,204,460,4 61 & 465 - Indian Penal Code, 1860 - Sections 324, 323 and 504 - taking cognizance of an offence - cognizance - taking judicial notice - there is no legal requirement that the Magistrate should pass a speaking order indicating reasons, at the stage of taking cognizance - in the absence of any legal requirement for the Magistrate to have given detailed reasons in an order taking cognizance and issuing process the same cannot be held to be vitiated only on the ground that the order is not a reasoned order.(Para - 43,48) Application filed seeking quashing of the chargesheet - principal ground - order passed by Magistrate - taking cognizance is without application of mind - passed mechanically without assigning any detailed reasons. HELD:-Order of cognizance passed by the Magistrate after having advantage of perusing the police report and the materials therewith, the same therefore cannot be assailed only on the ground that it does not give detailed reasons. Court not inclined to exercise its inherent jurisdiction under Section 482 CrPC.Para - 56,57) Application u/s 482 Cr.P.C. dismissed. (E7) List of Cases cited:- ## Text _Characters 0–39,963 of 112,051. This is a partial read: ask again with offset=39963 for what follows._ 366 INDIAN LAW REPORTS ALLAHABAD SERIES दकसी व्यस्क्त को प्रदान न हो गर्ी हो, तब तक उद्दापन का अपराध पूणय नहीां हो सकता है। 11. वतयमान प्रकरण में अदववाददत रुप से मृतका ने अपनी माता (आवेदक सां0 1) से िर् की गर्ी िूदम को वापस नहीां दकर्ा है, जो आपरादधक पररवाद व धारा 200 व 202 दां0प्र0सां0 के अांतगयत दजय ब्यानोां के पररशीलन से िी पूणय रुप से पररलदक्षत होता है। अतः वतयमान प्रकरण में उद्दापन के समस्त अवर्व, प्रथम दृष्टर्ा िी पूणय नहीां होते हैं। अतः वतयमान प्रकरण में उद्दापन (धारा 383 िा0दां0 सां0) का कोई अपराध प्रथम दृष्टर्ा िी नहीां प्रकट होता है। अतः उसे धारा 384 िा0दां0सां0 के अन्तगयत सजा होने के िी प्रथम दृष्या मामला नहीां बनता है। 12. अब न्यार्ालर् को र्ह देखना है क्या धारा 385 िा0दां0सां0 (उद्दापन करने के दलए दकसी व्यस्क्त को क्षदत के िर् में डालना) का अपराध क्या पत्रावली पर उपस्थथत आपरादधक पररवाद, धारा 200 व 202 दां0प्र0सां0 के ब्यान के मद्देनजर प्रथम दृष्टर्ा बनता है र्ा नहीां। आपरादधक पररवाद व वादी व गवाहोां के ब्यानोां में र्ह कथन दकर्ा गर्ा है दक आवेदकगण वादी की पत्नी पर जमीन पुनः उनके नाम करने का दबाव देने लगे और मानदसक व शारीररक रुप से उसको प्रताद़ित करने लगे। 13. धारा 385 के अवर्व उद्दापन का प्रर्ास करते हुए दकसी व्यस्क्त को दकसी क्षदत के िर् में डालने र्ा डालने का प्रर्त्न करने का अपराध को वदणयत करते हैं। वतयमान प्रकरण में आपरादधक पररवाद, धारा 200 व 202 दां0प्र0सां0 के ब्यानोां से प्रथम दृष्टर्ा वादी की पत्नी को उद्दापन करने का प्रर्ास करते हुए उसको मानदसक व शारीररक प्रता़िना पहुाँचाना कहा गर्ा है। परन्तु इस नाते कैसे उसको िर् में डालने र्ा डालने का प्रर्त्न करने का कोई दवदनष् साक्ष्य र्ा कथन पत्रावली पर उपस्थथत नहीां है और न ही र्ह कथन दकर्ा गर्ा है दक क्या मानदसक र्ा क्या शारीररक प्रता़िना पहुांचार्ी गई थी। अतः वतयमान प्रकरण में धारा 385 िा0दां0 सां0 के अवर्व प्रथम दृष्टर्ा उपस्थथत न होने के कारण इस अपराध के काररत होने का मामला िी नहीां बनता है। इसी प्रकार धारा 506 िा0दां0सां0 के िी अवर्व िी उपस्थथत न होने के कारण िी उस अपराध के घदटत होने का प्रथम दृष्टर्ा मामला नहीां बनता है। 14. जैसा की पूवय में दवश्लेषण दकर्ा गर्ा है दक र्दद पररवाद व सादक्षर्ोां के ब्यान में लगार्े गर्े अदववाददत आरोप से दकसी िी अपराध का कृत्य का होना प्रकट नहीां होता हो र्ा अपराध के आवश्यक अवर्व उपस्थथत नहीां हो तो र्ह न्यार्ालर् अपनी अन्तदनयदहत शस्क्तर्ोां का उपर्ोग करते हुए आदेदशका (सम्मन) दनरस्त कर सकता है। 15. अतः उपरोक्त दवश्लेषण का एक ही पररणाम है दक र्ह आवेदन स्वीकार करने र्ोग्य है तद्नुसार स्वीकार दकर्ा जाता है तथा आक्षेदपत आदेश ददनाांक 27.02.2017 जो ए0सी0एम0 दद्वतीर्, कानपुर नगर द्वारा पररवाद सांख्या- 776/15, रमाशांकर बनाम श्रीमती लक्ष्मी देवी आदद, अन्तगयत धारा-384, 385, 506 िा0द0सां0 के मामले में पाररत दकर्ा गर्ा है, दनरस्त दकर्ा जाता है। ---------- (2022)01ILR A366 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 14.12.2021 BEFORE THE HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J. Application U/S 482 Cr.P.C. No. 12578 of 2021 Badri Prasad & Ors. ...Applicants Versus State of U.P. & Anr. ...Opposite Parties 1 All. Badri Prasad & Ors. Vs. State of U.P. & Anr. 367 Counsel for the Applicants: Sri Sarveshwar Singh @ S.S. Chauhan Counsel for the Opposite Parties: A.G.A. (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Sections 173,190(1)(b),193,200,202,203,204,460,4 61 & 465 - Indian Penal Code, 1860 - Sections 324, 323 and 504 - taking cognizance of an offence - cognizance - taking judicial notice - there is no legal requirement that the Magistrate should pass a speaking order indicating reasons, at the stage of taking cognizance - in the absence of any legal requirement for the Magistrate to have given detailed reasons in an order taking cognizance and issuing process the same cannot be held to be vitiated only on the ground that the order is not a reasoned order.(Para - 43,48) Application filed seeking quashing of the chargesheet - principal ground - order passed by Magistrate - taking cognizance is without application of mind - passed mechanically without assigning any detailed reasons. HELD:-Order of cognizance passed by the Magistrate after having advantage of perusing the police report and the materials therewith, the same therefore cannot be assailed only on the ground that it does not give detailed reasons. Court not inclined to exercise its inherent jurisdiction under Section 482 CrPC.Para - 56,57) Application u/s 482 Cr.P.C. dismissed. (E7) List of Cases cited:- 1. Pepsi Foods Ltd. Vs Special Judicial Magistrate , (1998) 5 SCC 749 2. Fakhruddin Ahmad Vs St. of Utaranchal, (2008) 17 SCC 157 3. Ankit Vs St. of U.P. & anr., (2009) 67 ACC 532 4. Vineet Agarwal & ors. Vs St. of U.P. & anr., (Application U/S 482 No. 15450 of 2020, decided on 11.11.2020) 5. St. of Guj. Vs Afroz Mohammad Hasanfatta, AIR 2019 SC 2499 6. U.P. P.C.B. Vs M/s. Mohan Meakins Ltd. & ors., (2000) 3 SCC 745 7. Kanti Bhadra Shah & anr. Vs St. of W.B., (2000) 1 SCC 722 8. Mathai Vs St. of Kerala, (2005) 3 SCC 260 9. Darshan Singh Ram Kishan Vs The St. of Mah., (1971) 2 SCC 654 10. S.K.Sinha, Chief Enforcement Officer Vs Videocon International Ltd., (2008) 2 SCC 492 11. Supdt. & Remembrancer of Legal Affairs Vs Abani Kumar Banerjee, AIR 1950 Cal 437 12. R.R. Chari Vs St. of U.P., AIR 1951 SC 207 13. Narayandas Bhagwandas Madhavdas Vs St. of W.B., AIR 1959 SC 1118 14. Gopal Das Sindhi Vs St. of Assam, AIR 1961 SC 986 15. Nirmaljit Singh Hoon Vs St. of W.B., (1973) 3 SCC 753 16. Darshan Singh Ram Kishan Vs St. of Mah., (1971) 2 SCC 654 17. Devarapalli Lakshminarayana Reddy Vs V. Narayana Reddy, (1976) 3 SCC 252 18. Fakhruddin Ahmad Vs St. of Uttaranchal & anr.,(2008) 17 SCC 157 19. Ajit Kumar Palit Vs St. of W.B, AIR 1963 SC 765 368 INDIAN LAW REPORTS ALLAHABAD SERIES 20. Emperor Vs Sourindra Mohan Chuckerbutty, ILR (1910) 37 Cal 412 21. Chief Enforcement Officer Vs Videocon International Ltd. (2008) 2 SCC 492, 22. Supdt. & Remembrancer of Legal Affairs Vs Abani Kumar Banerjee, AIR 1950 Cal 437 23. R.R. Chari Vs St. of U.P. , AIR 1951 SC 297 24. Subramanian Swamy Vs Manmohan Singh & anr.,(2012) 3 SCC 64 25. R.R. Chari Vs St. of U.P.12, St. of W.B. Vs Mohd. Khalid, AIR 1951 SC 207 26. St. of Karnataka & anr. Vs Pastor P. Raju, (1995) 1 SCC 728 27. St. of WB Vs Mohd. Khalid, (1995) 1 SCC 684 28. Kanti Bhadra Shah & anr. Vs The St. of W.B., (2000) 1 SCC 722 29. U.P. P.C.B. Vs Mohan Meakins Ltd. & ors., (2000) 3 SCC 745 30. Rajesh Talwar Vs CBI Delhi & anr., (2012) 4 SCC 245 31. Bhushan Kumar & anr. Vs St. (NCT of Delhi) & anr., (2012) 5 SCC 424 32. Chief Enforcement Officer Vs Videocon International Ltd., (2008) 2 SCC 492 33. Kanti Bhadra Shah Vs St. of W.B., (2000) 1 SCC 722 34. Nagawwa Vs Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 35. Chief Controller of Imports & Exports Vs Roshanlal Agarwal, (2003) 4 SCC 139 36. U.P. P.C.B. Vs Bhupendra Kumar Modi, (2009) 2 SCC 147 37. Nupur Talwar Vs C.B.I. & anr., (2012) 11 SCC 465 38. Kanti Bhadra Shah Vs St. of W.B., (2000) 1 SCC 722 39. U.P. P.C.B. Vs Bhupendra Kumar Modi, (2009) 2 SCC 147 40. Chief Controller of Imports & Exports Vs Roshanlal Agarwal, (2003) 4 SCC 139 41. Bhushan Kumar & anr. Vs St. (NCT of Delhi) & anr., (2012) 5 SCC 424 42. Sunil Bharti Vs C.B.I. , (2015) 4 SCC 609 43. St. of Guj. Vs Afroz Mohammed Hasanfatta , (2019) 20 SCC 539 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, AIR 1994 SC 1229 48. Pepsi Foods Ltd. Vs Special Judicial Magistrate, (1998) 5 SCC 749 49. Fakhruddin Ahmad Vs St. of Utaranchal, (2008) 17 SCC 157 50. Ankit Vs St. of U.P. & anr.,(2009) 67 SCC 532 51. Vineet Agarwal & ors. Vs St. of U.P. & anr., Application U/S 482 no. 15450 of 2020, decided on 11.11.2020 52. Deputy Chief Controller Import & Export Vs Roshan Lal Agrawal, (2003) 4 SCC 139 53. U.P. P.C.B. Vs Mohan Meakins & ors., (2003) 3 SCC 745 54. Kanti Bhadra Shah & anr. Vs The St. of W.B., (2000) 1 SCC 722 (Delivered by Hon'ble Dr. Yogendra Kumar Srivastava, J.) 1 All. Badri Prasad & Ors. Vs. State of U.P. & Anr. 369 1. Heard Sri S.S.Chauhan, learned counsel for the applicants and Sri Vinod Kant, learned Additional Advocate General, appearing alongwith Sri Pankaj Saxena, learned Additional Government Advocate-I for the State-opposite party. 2. The present application under Section 482 CrPC has been filed seeking quashing of the charge-sheet dated 20.11.2020 in Case Crime No. 402/2020 under Sections 324, 323 and 504 Indian Penal Code Police Station Bhojipura, District Bareilly pending in the court of Additional Chief Judicial Magistrate, Bareilly with a further prayer to stay the proceedings of the aforesaid case. 3. The principal ground which is sought to be urged for seeking quashing of the proceedings is that the order dated 19.02.2021 passed by the Magistrate taking cognizance is without application of mind and has been passed mechanically without assigning any detailed reasons. It has been further argued that as per the FIR version, the weapon used in commission of offence could not be described to be a "dangerous weapon" so as to constitute an offence under Section 324 IPC and this aspect of the matter having not been examined by the Magistrate while taking cognizance of the charge-sheet, the order taking cognizance cannot be sustained. In support of his submissions, learned counsel for the applicants has referred to the decisions in Pepsi Foods Ltd. v. Special Judicial Magistrate1, Fakhruddin Ahmad Vs. State of Utaranchal2, Ankit Vs. State of U.P. and another3, and Vineet Agarwal and others Vs. State of U.P. and another4. 4. Learned Additional Advocate General has controverted the aforesaid submissions by pointing out that the question as to whether the weapon of offence in a given case would be a "dangerous weapon" would be a question of fact to be examined on the basis of evidence. In the instant case, from the nature of injuries as have been shown in the injury report, it cannot be conclusively said at this stage of the proceedings that the weapon of offence cannot be held to be a "dangerous weapon". 5. Learned Additional Advocate General has submitted that pursuant to the registration of the FIR dated 09.11.2020, the matter was investigated and a police report under Section 173 of the Code was submitted. The Magistrate having the advantage of police report and material submitted along with the same has taken cognizance in exercise of powers under Section 190 (1) (b) and the order taking cognizance clearly states that the Magistrate had perused the charge-sheet, the case diary and the materials which had been submitted along with the same and on the basis thereof had held that there was sufficient material to take cognizance and to register the case. He has further submitted that while taking cognizance under Section 190 (1) (b), it is not mandatory for the court to record detailed reasons for its satisfaction. In support of his submissions, learned AGA-I has placed reliance upon the decisions in State of Gujarat Vs. Afroz Mohammad Hasanfatta5, U.P. Pollution Control Board Vs. M/s. Mohan Meakins Ltd. and others6, Kanti Bhadra Shah and another Vs. State of West Bengal7, and Mathai Vs. State of Kerala8 370 INDIAN LAW REPORTS ALLAHABAD SERIES 6. The principal issue which thus arises is with regard to the manner of taking cognizance and issuing process as per the procedure prescribed under the Code and as to whether detailed and elaborate reasons are required to be recorded at the stage of taking cognizance or issuing of process. 7. After completion of the stage of investigation and placing of the final report by the police to a competent Magistrate, the stage of trial is to begin. As a precursor of the stage, the steps which are envisaged under the Code are as follows : (i) taking cognizance of the offence; (ii) ascertaining whether any prima facie case exists against the accused person; and in case it exists, then (a) to issue process against the accused person in order to secure his presence at the time of his trial, (b) to supply to the accused person copies of police statements; (iii) consolidating different proceedings pertaining to the same case; and (iv) if the case is exclusively triable by a Sessions Court, committing the case to that court. 8. Chapter XIV of the Code relates to conditions requisite for initiation of proceedings. Section 190 provides as to when a Magistrate may take cognizance of any offence. Section 190 reads as follows :- "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 sub- section (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 sub- section (1) of such offences as are within his competence to inquire into or try." 9. A complaint referred to under subsection (1) (a) of Section 190 is defined under Section 2 (d) of the Code, which 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 noncognizable 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." 10. The police report referred to in subsection (1) (b) has been defined under Section 2 (r), as meaning a report forwarded by a police officer to a Magistrate under subsection (2) of section 173. The police report refers to be the report forwarded by the police on completion of the investigation. 11. Section 193 relates to cognizance of offences by Courts of Session, which is as follows:- 1 All. Badri Prasad & Ors. Vs. State of U.P. & Anr. 371 "193. Cognizance of offences by Courts of Session.- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." 12. Complaints to Magistrate are dealt with under Chapter XV of the Code. The provisions relating to examination of complainant are under Section 200. Section 202 provides for postponement of issue of process, where the Magistrate, thinks fit, to 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 purposes of deciding whether or not there is sufficient ground for proceeding. Section 203 provides for dismissal of complaint in a situation where after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding. Sections 200, 202 and 203, are being extracted below:- "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- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) 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 reexamine them. 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 Sessions; or (b) where the complaint has not been made by a Court, unless the 372 INDIAN LAW REPORTS ALLAHABAD SERIES complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under subsection (1), the Magistrate may, if he thinks fit, take evidence of witness 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 subsection (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 203. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing." 13. The procedure for commencement of proceedings before Magistrates is provided under Chapter XVI of the Code. Section 204 provides that if the Magistrate taking cognizance of an offence considers that there is sufficient ground for proceeding, he shall issue process against the accused person. Section 204 runs as follows :- "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 subsection (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." 14. It would therefore be seen that cognizance of offence is the first and foremost step towards trial. The Code has not defined or specifically explained the expression ''taking cognizance of an offence'. The meaning of the expression, 1 All. Badri Prasad & Ors. Vs. State of U.P. & Anr. 373 however, has been considered in various judicial authorities, and it would be useful to advert to the same. 15. 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 Maharashtra9, 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." 16. 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 Limited10, 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 Banerjee11, R.R. Chari v. State of U.P.12, Narayandas Bhagwandas Madhavdas v. State of W.B.13, Gopal Das Sindhi v. State of Assam14, Nirmaljit Singh Hoon v. State of W.B.15, Darshan Singh Ram Kishan v. State of Maharashtra9, and Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy16, 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 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 374 INDIAN LAW REPORTS ALLAHABAD SERIES 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. 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 Banerjee11, 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 1 All. Badri Prasad & Ors. Vs. State of U.P. & Anr. 375 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.12, was probably the first leading decision of this Court on the point. There, the police, having suspected the appellant-accused 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 Banerjee11, the Court, speaking through Kania, C.J. stated: (Chari12 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 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 Banerjee11, this Court held that it was on 25-3-1949 when the Magistrate issued a notice under Section 190 of the Code 376 INDIAN LAW REPORTS ALLAHABAD SERIES 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.13, 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.17,and Hareram Satpathy v. Tikaram Agarwala18. 31. In Gopal Das Sindhi v. State of Assam14, 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.15, 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 Maharashtra9, 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 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. 1 All. Badri Prasad & Ors. Vs. State of U.P. & Anr. 377 34. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy16, 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) 17. The meaning and connotation of the expression 'taking cognizance' again came up for consideration in Fakhruddin Ahmad Vs. State of Uttaranchal and another2, 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 sought to be instituted and the nature of preliminary action. Taking note of the earlier decisions in Ajit Kumar Palit v. State of W.B17, Emperor Vs. Sourindra Mohan Chuckerbutty19 Chief Enforcement Officer v. Videocon International Ltd.10, Supdt. & Remembrancer of Legal Affairs v. Abani 378 INDIAN LAW REPORTS ALLAHABAD SERIES Kumar Banerjee11, and R.R. Chari v. State of U.P.12, 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.