[This is a guest post by Aadi Belhe]
The Code of Criminal Procedure, 1973 (‘the Code’) provides for a hierarchy of courts with each kind of court in that hierarchy being empowered to try offences based on their severity (usually). Irrespective of the court which must try an offence, the prerequisite for initiation of judicial proceedings is the taking of cognizance of the alleged offences by a Judicial Magistrate under section 190 of the Code. After taking cognizance and then issuing process under section 204, the Magistrate must commit the case to the local Court of Session through section 209 if he is of the opinion that the case is exclusively triable by such a Court. Section 190 is not the only provision concerned with cognizance, since section 193 lays down that a Court of Session can take cognizance of offences triable by it only after committal happens.
The decision of a Constitution Bench (5 Judges) of the Supreme Court in Dharam Pal v. State of Haryana sought to alter the dynamic of the stage of cognizance in cases involving committal proceedings. This case held that it can be inferred from section 193 that a Magistrate cannot take cognizance when a case is exclusively triable by the Court of Session. My main argument in this piece is that Dharam Pal contorts the meaning of ‘cognizance’ for seemingly instrumental reasons due to which it is at odds with the text of the Code as well as precedent. It also has the effect of rendering the Code unworkable in certain situations. I further propose a solution which remedies this state of affairs without affecting the rest of Dharam Pal’s reasoning. My solution preserves the remainder since I am not carrying out a normative critique of any portion other than that concerned with cognizance.
A Short Summary of Dharam Pal
The appellant had been mentioned in a chargesheet but not as an accused person. Despite this, the Judicial Magistrate who took cognizance on the basis of the chargesheet also issued process against him. The Magistrate had acted on the basis of a grievance articulated by the complainant which he treated as a protest petition. This led to litigation which eventually culminated in a three judge bench of the Supreme Court referring the case to the Constitution Bench. Six questions were framed while referring the case, which also led the Court to consider whether a Court of Session could do the same thing (take cognizance and summon a person not named in the chargesheet) when a case came before it.
The end result of Dharam Pal was that the Supreme Court upheld the powers of Judicial Magistrates and Courts of Session to issue process against non-accused persons. It further laid down that a Magistrate cannot take cognizance whenever committal must occur. The Constitution Bench did not adjudicate upon the instant fact situation but instead sent the matter back to the smaller bench for a decision on merits.
Birthing a proxy rule through paradoxical procedure
The Supreme Court in Dharam Pal had held that a Judicial Magistrate must play a passive role whenever committal is to happen. This passive role was equated with not taking cognizance due to the insistence of the Court on the previously mentioned proposition that cognizance can only be taken once in any given case. According to the Court, only the Court of Session can take cognisance under section 193 in such cases. The position of law was clarified by a later Division Bench case of Balveer Singh v. State of Rajasthan in which it was stated that the ‘passive role’ contemplated by Dharam Pal is equivalent to not issuing process against non-accused persons.
In other words, while Dharam Pal had already equated the ‘passive role’ of the Magistrate and not taking cognizance, Balveer Singh had the effect of equating these two with not issuing process against non-accused persons. To illustrate, a Magistrate would be said to have played a passive role/not taken cognizance when he issues process only against X, Y, and Z because they alone were mentioned as the accused in a chargesheet. Essentially, the logic of these two cases leads to the conclusion that cognizance will be said to have been taken when process is issued against non-accused persons. The absurdity of such a state of affairs is immediately apparent. No small part of this absurdity stems from the blurring together of the act of taking cognizance and that of issuing process. This results in a paradox since it is only after process is issued that it will become clear whether cognizance has been taken even though the Code makes it apparent that process cannot be issued unless cognizance is taken.
It is clear that even this twisted understanding of cognizance does not necessarily lead to the conclusion that it must take place only once during the lifespan of a case. Nothing about this understanding prevents both the Magistrate and the Court of Session from taking cognizance and thereby issuing process against separate sets of non-accused persons. Questioning why the rule against double cognizance is necessary sheds light on why the Supreme Court carried out faulty reasoning in the first place. The distortion of cognizance in Dharam Pal, i.e. the erasure of the line between cognizance properly speaking and issuance of process, does nothing other than connect the concept of cognizance with the specific powers with which Dharam Pal is concerned. This allowed the Supreme Court to ensure that only the Court of Session can exercise such a power in cases involving committal by denying that the Judicial Magistrate can take cognizance in such cases. Thus, the main purpose behind the reasoning in Dharam Pal seems to have been to grant Courts of Session an exclusive power to issue process against non-accused persons in cases triable by them. The rule against double cognizance thus acts as a proxy for the rule that this power is vested only in Courts of Session in cases triable by them.
The counter argument could be made that the distortion and the rule against double cognizance were not brought into being in pursuit of any goal, or in other words, that the importance given to the power of Courts of Session was purely unintentional. This conclusion is supported by the blatant incorrectness of Dharam Pal’s reasoning as well as by the fact that the exclusive nature of the power of Courts of Session was not stated in so many words. If the Court consciously wanted to give an exclusive power, then it presumably would have wanted to base its decision on firmer reasoning and it would also have made fully explicit the point of law that it truly wanted to lay down. I concede that this is entirely plausible and might very well be true. However, this point is not of much importance since the binding value of the implied rule for which the rule against double cognizance acts as proxy is not affected by whether it was intentionally laid down or not. The implied rule of exclusivity is a part of the ratio through the proxy rule since they limit the situations in which the power of Judicial Magistrates, the existence or non-existence of which was central to Dharam Pal, can be exercised.
A reasoned rebuttal of Dharam Pal
Precedent and the text of the Code compellingly show why the peculiar understanding of cognizance in Dharam Pal and the rule against double cognizance respectively are bad in law. Coming first to precedent, the much cited case of R.R. Chari v. State of Uttar Pradesh held that a Magistrate takes cognizance of an offence whenever he applies his mind to the information presented before him for the purpose of initiating further proceedings. A Constitution Bench of the Supreme Court upheld this understanding of cognizance in Sarah Mathew v. Institute of Cardio-Vascular Diseases due to which there is a conflict amongst precedent on this point since Dharam Pal was also decided by a 5 Judge Bench.
It is fairly obvious that R.R. Chari has laid down the correct law since it does not ground section 190 in section 204. Further, it is right also for the reason that Dharam Pal leads to the conclusion that even when no committal can happen, cognizance will be said to have been taken only when process is issued against non-accused persons by the Judicial Magistrate. This is the case since there is no indication in Dharam Pal that it gives a special meaning to ‘cognizance’ in cases where committal has to be made. This means that in a sizeable chunk of cases the taking of cognizance even once will be rendered impossible since taking cognizance would require entangling more persons in the processes of the criminal justice system even though the Magistrate might be of the opinion that no non-accused person needs to be proceeded against.
Moving on to the text of the Code, it is clear that section 209 cannot be triggered before cognizance is taken by the Magistrate since section 190 is in Chapter XIV titled ‘Conditions Requisite for Initiation of Proceedings’ while section 209 is in Chapter XV which is titled ‘Commencement of Proceedings before Magistrates’. Hence, even though a Court of Session will have to take cognizance under section 193 after section 209 is complied with, this cognizance cannot take place unless and until the Judicial Magistrate himself takes cognizance. Thus, the rule against double cognizance is blatantly incorrect.
The Simple Way Out
Before coming to my proposed solution, the nature of the powers which Dharam Pal confers on Magistrates and Courts of Session needs to be understood. The genesis of these powers lies in the Supreme Court’s decision in Raghubans Dubey v. State of Bihar. While Dubey was only concerned with Judicial Magistrates, the power contemplated by it was extended to Courts of Session by Dharam Pal since it upheld the prior decision of Kishun Singh v. State of Bihar. Dubey essentially had the effect of giving a broad interpretation to the term ‘accused’ in section 204 (PDF) of the Code of Criminal Procedure Code, 1898, which is in pari materia with section 204 of the 1973 Code, even though it never referred to that section. However, under the Code no power to issue process equivalent to that under section 204 has been granted to Courts of Session due to which one must reach the conclusion that Dharam Pal has given a non-textual power to such courts.
Finally coming to the solution, the easy method of terminating this imbroglio consists of upholding the R.R. Chari understanding of cognizance while at the same time recognizing the precedent-based nature of the powers with which Dharam Pal is concerned and their concomitant mouldability. This path eliminates the link between cognizance and the powers while still upholding the dominance of the power of Courts of Session over that of Judicial Magistrates. While the Supreme Court used cognizance as a crutch to ensure the precedence to be given to the power of Courts of Session, this solution achieves that goal without involving cognizance by discarding the proxy rule of no double cognizance and the poor understanding of cognizance which accompanied it. The second prong of the solution makes this dominance an independent rule in and of itself.
The first prong of this solution entails recognizing that cognizance can take place twice in a case in which committal must take place due to R.R. Chari. The second prong is to prevent Magistrates from exercising powers under section 204 in the manner contemplated by Dubey when section 209 is to be triggered while not necessitating them to exercise it in such a manner when the latter section is not to be proceeded under. This ensures the dominance of the extra-textual power of the Courts of Session under section 193 while preventing Magistrates from needlessly exercising their broad power under section 204. Most importantly this solution disentangles sections 190 and 204 from each other.
A Harmless Decision – For Now
It is certain that the distortion of cognizance in Dharam Pal has not had an outsized effect on the criminal justice system as is evinced by the fact that Division Benches of the Supreme Court have continued to cite R.R. Chari in cases like Jayant v. State of Madhya Pradesh and Manju Surana v. Sunil Arora. However, this by itself is not sufficient reason for considering Dharam Pal to be a harmless decision. It can provide opportunities to judges and counsel in future cases to carry forth with bad argumentation which might actually have deleterious effects on the justice system. Hence, it is necessary to nip the logic of Dharam Pal in the bud while it has not strongly established itself in the stream of precedent.
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