Wednesday, September 23, 2015

Understanding Cognizance and Criminal Complaints

Often enough, we face problems of definition while dealing with some terms and solve them by merely using synonyms for the term in question. This happens a bit too often in the law - how do you explain novelty as patent lawyers would complain. In criminal procedure, the term 'cognizance' has proved to be rather mysterious for generations, despite the Supreme Court insisting otherwise [S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. & Ors., (2008) 2 SCC 492]. As the Cr.P.C. provides no definition  of cognizance, this has resulted in the Court generating a rather vast body of precedent on attempting to decipher the mystery. The recent Law Commission Report on the Death Penalty ably demonstrates how the Supreme Court is not very particular about following the precedent it generates - a similar report on some areas of criminal procedure might not be out of order. This selective amnesia was very recently on display in S.R. Sukumar v. S. Sunaad Raghuram [Crl. Appeal 844/2015 decided on 02.07.2015 and referred to as Sukumar henceforth], which propels some discussion on cognizance.

Of Definitions
The internet provides useful access to a host of dictionary definitions on cognizance. Consulting Oxford Dictionaries, Merriam-Webster, and Collins, it appears that cognizance is a noun - not a verb - and means "knowledge or awareness". The indicative usage in sentences suggests this is a state of being of the actor concerned, and as being a synonym for those other words mentioned above. While transposing this ambiguous phrase to the law, the multiplicity of synonyms is what seems to have caused particular bother. Ignoring the fact that cognizance is a noun and not a verb seems to be the other problem - insisting on the grammatically tedious taking of cognizance was bound to come back to haunt the law. I haven't seen a decision of the Supreme Court of India which discusses the issue with any grammatical nous. What the Supreme Court often does is rely on Black's Law Dictionary to help its understanding of the term cognizance. That definition again considers the term to mean several, different, things: (i) jurisdiction, (ii) exercise of jurisdiction, (iii) power to try cases [See, State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372].

Statutory Framework
Chapter XIV of the Cr.P.C. 1973 is titled 'Conditions requisite for initiation of proceedings' and has cognizance at its heart. All the provisions are concerned with the question of how and when can a court take cognizance of offences, without ever explaining to us what exactly is involved in that taking of cognizance. The perusal of Sections 190-199 does make it abundantly clear though that cognizance is concerned with the initiation of proceedings. It is separate from summoning of accused persons, again clear upon seeing how Section 204 specifically addresses that proposition. So it seems that cognizance is nothing but taking judicial notice of facts to initiate proceedings. Significant judicial opinion does support this clear view; see, R.R. Chari v. State of U.P. (AIR 1963 SC 1573).

The difficulties arise when we look at Chapter XIV together with Chapter XV, titled 'Complaints to Magistrates' and Sections 200-203 therein. These sections basically require a Magistrate to examine the Complainant and other witnesses [Section 200], and tells Magistrates what to do if they cannot take cognizance [Section 201] or if they think some more materials are needed to determine whether there is sufficient ground for proceeding [Section 202]. At the end of this, the complaint is either dismissed [Section 203] or the accused persons are summoned for trial [Section 204]. Now, does this entire exercise happen before or after cognizance? If this is a post-cognizance exercise, then does cognizance merely entail receipt and registration of a complaint under Section 190 Cr.P.C.?

The Court and Cognizance of Complaints 
Take a closer look at the opening words of Section 200: "A Magistrate taking cognizance of an offence on a complaint ....". The answer to the difficulty mentioned above lies in how we see this text. Does this refer to the current status of a Magistrate, and tells the Magistrate what is to be done to take the cognizance spoken of. Or, does the text introduce what a Magistrate must do upon taking cognizance? Another important question further arises: can a Magistrate therefore never examine the Complainant without taking cognizance?

There are many views on this, beginning with the excellently vague: "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 is said to have taken cognizance" [Again, S.K. Sinha v. Videocon (supra)]. A large section of the opinions is more specific, thankfully. That view is that Chapter XV is an exercise by a Magistrate after cognizance is taken: H.S. Bains v. State, (1980) 4 SCC 631; Tula Ram v. Kishore Singh (1977) 4 SCC 459Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252; Nirmaljit Singh Hoon v. State of West Bengal, (1973) 3 SCC 753. This would mean that the Magistrate while taking cognizance takes notice of the facts disclosed in a complaint to initiate proceedings under Chapter XV.

Sukumar and its Many Failings
The problem of cognizance was not actually central in Sukumar as the main issue arose from an application seeking to amend the complaint. Arguments were premised on the application's validity depending on whether it was moved before or after cognizance has been taken. The Application introduced material allegations against the Appellant based on events occurring after filing of the complaint. Reading the decision, it seems the lower courts were unreasonably swayed by the contents of the amendment application in deciding whether it was valid. Though this argument is obviously fallacious in light of the Cr.P.C. allowing joint trials for such similar offences [Sections 217-220], the Supreme Court also wrongly opined that preventing multiple trials for such similar allegations was a good reason to allow the application at that stage.

Having seemingly arrived at this conclusion, the Court went ahead and dealt with the legal hurdle of cognizance. In Sukumar the Trial Court Order on 18.05.2007 recorded that cognizance had been taken, with the Complainant also having been examined and a further inquiry conducted. Thus, both Sections 200 and 202 were engaged by the Magistrate. Amazingly, however, both the High Court and Supreme Court held that this did not mean "actual cognizance" had been taken by the Magistrate. The Court's basis understanding when "actual cognizance" is taken shows how it clearly confused cognizance with the idea of process under Section 204. The Court held: "A Magistrate takes cognizance of an offence when he decides to proceed against the person accused having committed the offence and not at the time when the Magistrate is just informed either by complainant by filing the complaint or by the police report about the commission of an offence." To make matters worse, the Court cites decisions, of higher bench-strength, that directly oppose the conclusions arrived at here.

The multiple ideas that can be attached to cognizance are clear upon examining the dictionaries currently available. At some point the Supreme Court realised this and entrenched the view that cognizance is little else but the first judicial interaction with a set of facts alleging commission of offences. This strategy helps reduce possible confusion by reducing the scope of the stage itself. There have always been decisions ignoring this view, an unfortunate consequence of the Supreme Court being a cacophony of opinions at times. One can only hope that Sukumar joins the company of those wayward decisions, for it is simply indefensible.

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