Wednesday, January 21, 2015

Complaints, Chargesheets, and Taking Cognizance

Section 190(1) of the Cr.P.C. 1973 outlines three ways in which a Magistrate may take cognizance of offences: (a) on the basis of a Complaint of facts disclosing an offence, (b) on the basis of a Police Report of such facts, and (c) on information from any other person or his own knowledge, that such an offence has been committed. In some cases however, a Special Act may restrict the manner in which cognizance of offences may be taken by the Magistrate. Consider, for instance, Section 13(3) of the Official Secrets Act, 1923 says: no court shall take cognizance of any offence under this Act except upon complaint made by order of, or under authority from, the appropriate government or some officer duly empowered by the appropriate government in this behalf [emphasis supplied].

While these provisions were anomalous earlier, today with a host of special criminal statutes we find such provisions quite common. It is, therefore, not only interesting but also important to discuss some problems surrounding this area. 

How to Treat Special Complaints 
Ordinarily, one imagines the Complaint as being filed by a private person, who does not have the abundant investigative resources of the State to support him. The Police Report, on the other hand, is the product of these resources at the State's disposal. So where a statute requires an authorised officer to file a complaint, we cannot be blamed for thinking that this is more akin to a Police Report than a Complaint. But these are technical terms: 'Complaint' and 'Police Report' are defined under Section 2(d) and 2(r) of the Code respectively. Therefore the canons of statutory interpretation demand that we interpret the text literally rather than second-guess the meaning behind the text.

How we treat Special Complaints of the kind mentioned in Section 13(3) of the Official Secrets Act is not a mere academic inquiry. There are several consequences unique to cases instituted upon a Complaint and Police Report. For instance:

  • Filing of a Police Report under Section 173, Cr.P.C. allows for further investigation under Section 173(8), which is not present for Complaints. Nor can there be supplementary charge-sheets.
  • Only in cases instituted upon a Police Report does an Accused have the judicially protected right to supply of documents under Section 207, Cr.P.C.
  • The procedure for trial in Warrant Cases instituted upon a Police Report differs from those instituted upon a Complaint.
  • The Maharashtra Control of Organised Crimes Act 1999 [MCOCA] punishes 'continuing unlawful activity' which is defined as any activity prohibited by law in respect of which one or more charge-sheets have been filed.
Therefore, the treatment of Special Complaints as falling within the definition of a 'Complaint' or 'Police Report' has potentially significant consequences. Beyond the issues highlighted above, another issue involves taking cognizance. What provision would be invoked while taking cognizance of Special Complaints: Section 190(1)(a) or (b)? Or would Section 190 be invoked at all? 

Judicial Interpretation
The judiciary's treatment of these issues makes my academic excitement feel like dead rubber. With due regard to the canon of literal interpretation, courts have held that a Special Complaint is exactly that, a Complaint. Lets revisit the issues highlighted above before we move to cognizance.
  • In S. Nagrajan v. State [Crl. Rev. Petition No. 321/2004, decided on 15.03.2013] the Delhi High Court held that no further investigation akin to Section 173(8) was possible for a Special Complaint under the erstwhile Prevention of Food Adulteration Act, 1954. 
  • Similarly, in Ajit Narain Haksar v. State of Karnataka [ILR 2002 Kar 2175], the Karnataka High Court held there could be no supplementary complaints under the Central Excise & Salt Act 1944 akin to supplementary charge-sheets. [Importantly though, the Jharkhand High Court arrived at the opposite conclusion for the Prevention of Money Laundering Act. See, Narendra Mohan Singh v. Directorate of Encforcement, Crl. M.P. No. 2863/13, decided on 22.03.2014]. 
  • In State of Maharashtra v. Ajay Jagdish Pande [Crl. Appeal No. 722/12, decided on 25.0.2014], the Bombay High Court held that a Special Complaint for offences under the Environment Protection Act 1988 could not be a 'Charge-sheet' for the definition of 'continuing unlawful activity' under the MCOCA.
Problems with cognizance came in a rather more direct fashion. Courts were provided with a Police Report where the statute specifically provided for cognizance to be taken on a Complaint by an authorised officer. Two problems emerged: (a) would such taking of cognizance be illegal, and (b) would it vitiate proceedings. 

Unsurprisingly, the Delhi High Court in Aniruddha Bahal v. CBI [210 (2014) DLT 292], relying upon the decision of the Supreme Court in Jeewan Kumar Raut v. CBI [AIR 2009 SC 2763], held that cognizance of offences on a Police Report is illegal where the statute expressly mandated it to be on a complaint. The Court was specifically concerned with offences under the Official Secrets Act. Interestingly though, the Court seems to go further and answer point (b) in the affirmative. 

Is this proper? Sections 460 and 461 of the Cr.P.C. detail circumstances which are irregularities and illegalities. Erroneous taking of cognizance under Section 190 is covered by Section 460 clause (d), thus preventing proceedings from being set aside merely on this ground. However, cognizance is not being taken under Section 190 for any of those Special Complaints. It is being taken under the particular provisions of the concerned special statute, and that procedure should override the general procedure in accordance with Section 4(2) of the Cr.P.C.

In 1967, the Law Commission of India in its 37th Report on the Code of Criminal Procedure 1898 [the official cover page has a typo] observed there was confusion regarding the definition of complaints and taking cognizance. It suggested an amendments may be made to Section 190(1)(b) of the Old Code to "cover specifically reports under other sections of the Code or under other laws". Section 190(1)(b) of the Old Code is identical to the current Section, which means the Commission considered including reports under other laws closer to a Police Report than a Complaint. 

A concrete suggestion for an amendment never emerged as the project was abandoned, but this gives some insight into the confusion prevailing in the area. Forty years later we see the Supreme Court come to the opposite conclusion in Jeewan Kumar Raut. Though most decisions indicate the term Complaint' must exclude a 'Police Report', contrary voices do exist and may yet lead to another intervention by the Apex Court. However, what may prove more important is the consequence of a finding that cognizance was illegally taken. The decision in Aniruddha Bahal does not discuss the aspect of Section 460, which leaves it open for the law to head in a different course. Expect more clarity over the course of this year, as that decision gets exposed across different settings.


  1. hey, I will be interested in authoring a guest blog on the POSCO Act, could i have your email please? I am a fourth year law student at NUJS.

    1. Hi. Sure! The email address is below