Guest Post: 'Complaint Cases' as Scheduled Offences under the PMLA

(This is a Guest Post by Sandeep Dash)

On 16.12.2025, a Court of the Special Judge, PMLA, in Rouse Avenue Courts, Delhi, passed a detailed order refusing to take cognizance of the Prosecution Complaint (‘PC’) under provisions of the Prevention of Money Laundering Act, 2002 (‘PMLA’) by the Enforcement Directorate (‘ED’) in the National Herald case.

The investigation and PC in the case stemmed from an order by the Court of a Metropolitan Magistrate taking cognizance of offences on a ‘private complaint’ by Dr. Subramanian Swamy against Sonia Gandhi, Rahul Gandhi and others alleging commission of offences under Sections 403, 406 & 420 read with Section 120B of the IPC, 1860. The details of the allegations in the said complaint are secondary to the present discussion.

During the pre-cognizance hearing (introduced under the BNSS), the proposed accused argued against maintainability of the PC, arguing that the ED had no jurisdiction to commence investigation under the PMLA in the absence of a First Information Report (‘FIR’) for the scheduled offence. Since the scheduled offence was based only on a complaint filed by a ‘private person’ under Section 200 Criminal Procedure Code 1973, it failed to meet the threshold requirement of an ‘FIR’ to initiate investigation and prosecution. On the contrary, the ED argued that PC was maintainable, as the scheduled offence could arise under three situations – either from a FIR, or a statutory complaint by a public servant or a private complaint.

The Court’s order hinges on the determination of a question of law that it frames early in the order – whether the registration of a FIR for the scheduled offence is a threshold requirement for investigation and consequent prosecution under the PMLA? Answering in the affirmative, the court reasoned that the ‘investigative potential of a FIR’ was much more than a ‘complaint’. In the facts of the case, I agree with the decision of the court. However, by framing the issue only around the necessity of an FIR, the court created an impression that an FIR is the only condition under which investigation and prosecution under the PMLA can be initiated.

I argue that a more general line of enquiry, with the question formulated as – ‘what is a threshold requirement for investigation and consequent prosecution under the PMLA?’ yields more appropriate answers to the when a scheduled offence is said to have been committed for triggering a PMLA investigation. In this, I argue firstly, that while it is correct that institutional investigation is a sine qua non for triggering PMLA investigation, the same can be done through ‘complaint cases’ and not necessarily only through FIRs; and secondly, that the law laid down in Vijay Madanlal Chaudhary indicates additional safeguards in such non-FIR scheduled offences.

The law on money laundering, as it is now understood in India, is hinged upon two key concepts – the ‘scheduled offence’ and ‘proceeds of crime’. Money laundering is variously described to be a ‘piggy-backing’ offence; others have called it a ‘parasitic’ and ‘dependent’ offence. What this means is that an offence of money laundering can come into the picture if and only if another offence has already taken place. This latter offence is called a ‘Scheduled Offence’, and ought to be one or more from among the various offences listed in the Schedule to the PMLA.

For instance, for laundering murder ransom money, the commission of murder is a prerequisite. The offence of ‘murder’ then becomes the ‘Scheduled Offence’ and the ransom ‘derived and obtained’ by committing this ‘Scheduled Offence’ becomes ‘Proceeds of Crime’. As soon as any dealing is done with these ‘Proceeds of Crime’ (handling, concealing, transferring, transforming, etc.), an offence under the PMLA can be said to be made out. What that means is that you may not have murdered anybody, and hence, will not be liable for the offence of murder u/s 302 of the Indian Penal Code, 1860 (S. 101 of the Bharatiya Nyaya Sanhita, 2023), but still be liable for helping move the ransom money under Section 3 of the PMLA.

For the purpose of the PMLA, when is a scheduled offence said to have been committed? Can it be said to have been committed at the moment of its actual physical commission, as in when the murderer’s axe lands on the neck of the victim, and he dies? Or can it be said to have been committed when the law is set in motion against such a murderer, as in his arrest or the making of a complaint about the murder by an eyewitness, or registration of an FIR? Or, further still, can it be said to have been committed when the issue is investigated by the police, and a formal charge is filed before the court?

Answering this question is key to understanding and answering the question facing us – at which stage can the ED jump in and initiate proceedings under the PMLA? Can it initiate PMLA proceedings, when –

1. Though a ‘Scheduled Offence’ has been committed, it has neither been reported nor investigated.
2. Though not investigated, it has been reported.
3. It has been investigated, and the perpetrator has been formally accused.

The bare statute of PMLA is not very helpful in answering this question. However, some help came in the form of Paragraph 31 in Vijay Madanlal Chaudhary: “The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression “derived or obtained” is indicative of criminal activity relating to a scheduled offence already accomplished. Similarly, in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/her, there can be no action for money-laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence.”

What we see in these paragraphs is some narrowing down of the situations when the ED can exercise the full range of its powers. Two situations emerge:

• A scheduled offence has been committed, and the said offence is registered with the jurisdictional police, i.e., an FIR under Section 154 Cr.P.C.OR
• A scheduled offence has been committed, and it is pending inquiry/trial by way of a Complaint (There is a 3rd, very important situation where the ED may jump in to a limited extent, i.e., through disclosure u/s 66(2) of PMLA, which is beyond the scope of this discussion).

Situation (i) is straightforward, and the registration of a FIR is enough for the ED to get going. This is not disputed by anybody. Situation (ii) is the tricky bit, and it is essential to understand what the words ‘Complaint’ and ‘pending inquiry’ mean here. First, what is a ‘Complaint’? Under the criminal procedure in India, the criminal law can generally be set in motion either through the police/other Law Enforcement agencies competent to file Final Reports u/s 173 Cr.P.C. or by way of complaints, made directly to the Magistrate u/s 200. We are not concerned about the police here, but rather with the route of ‘complaint’.

These complaints can be made by two kinds of persons: firstly, by private persons and secondly, by certain authorities. In case of private persons, for instance, anyone may initiate criminal proceedings by filing a ‘private complaint’ before the Magistrate, who can then either order the registration of an FIR and investigation by the police, or may take cognizance and proceed for a trial based on the material in the complaint itself. This latter route is the way that Dr. Subramaniam Swamy’s complaint came to be.

Would such a complaint, disclosing offences mentioned in the schedule to the PMLA, confer jurisdiction to the ED? Would that not mean that a complaint filed by anybody (which includes a ‘nobody’) can become the basis for subsequent action by the ED? Dr. Subramaniam Swamy perhaps has nothing to do with the National Herald, and in that sense, is not even a ‘victim’. Can such complaints, often political, be enough for the ED to move in? Will it not be an affront to justice if anybody and everybody is handed the power to potentially become the architect of a money laundering investigation?

These are legitimate questions; however, the court’s order does not venture into this territory of enquiry. Instead, it looks at the bare statute of PMLA and accompanying rules. The first proviso to Section 5(1) of the PMLA in the context of a provisional attachment order says that – “Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country”

Reading this (this is the only remaining place in the entire act, where this issue finds mention) suggests that it is only the complaints filed by the authorities investigating under the respective offences mentioned in the schedule that can be the basis of action by the ED. A similar provision is part of Rule 3(2) of the Prevention of Money-Laundering (Forms, Search and Seizure or Freezing and Manner of Forwarding the reasons and Material to the Adjudicating Authority, Impounding and the period of Retention) Rules, 2005.

A contextual reading of the order, where it interprets Vijay Madanlal Chaudhary, does reveal that the court was cognizant of the possibility of such non-FIR-based scheduled offences (See Para 151 of the order). However, the restrictive framing of the question prevented the court from delving deep into why it is only the kind of private ‘complaint’ case filed by Dr. Subramaniam Swamy that fails to meet the threshold for the ED to investigate, and not all complaint cases in general.

In the order, the court misattributes wide investigative powers (arrest, search, recording of statements, etc.) only to an Investigating Officer investigating under an FIR. The discussion by the court gives an impression of a blanket exclusion of complaint cases. But if that is the case, how would non-IPC offences, which are part of the schedule to the PMLA, but require no FIR for investigation, and are prosecuted through ‘complaints’ under Section 200 Cr.P.C., trigger a PMLA investigation?

An illustrative list of offences in the schedule that are investigated by ‘authorities’ other than police, and prosecuted by way of ‘complaints’, is useful:

Sr. No.	Act in the PMLA Schedule	Offences in the Schedule	Investigative Authorities	Empowering Section
1.	Environment Protection Act, 1986	Section 15 r/w 7 and Section 15 r/w 8	Several officers, including the District Collector, Secretary to the Ministry/Department of Environment, the Seed Inspector, Officers in the Central & State Pollution Control Boards, etc.	Section 19 r/w Notification No. S.O. 394(E), published in Gazette No. 185, dt.16.4.1987 & further amendments
2.	Customs Act, 1962	Section 135	Officers of the Customs Department	Section 137
3.	Securities and Exchange Board of India Act, 1992	Section 12A r/w 24	Securities and Exchange Board of India	Section 26 r/w 2(1)(a)
4.	Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015	51	Income Tax Department	Section 55

 

Note that many of these authorities can also exercise powers of arrest, search, and seizure, recording of statements, collection of specimens, etc., under their respective special laws, despite not being ‘police’. A cumulative reading of the statute, the schedule and the law laid down by the Supreme Court in Vijay Madanlal Chaudhary points to the fact that not all scheduled offences arising out of complaint cases are out of bounds for the ED. Complaint cases by persons authorized to investigate those offences, where there is no provision for an ‘FIR’ can be the basis for investigation by the ED.

Insofar as a ‘complaint case’ by a private person is concerned, the court was right in its order to hold that it cannot be the basis for action by the ED. Apart from the reasons discussed above, there are other logistical and ethical reasons for not allowing something like this. From the perspective of the state, collusive and weak complaints are often filed to defeat a genuine complaint, which would then defeat the PMLA case. From the perspective of the accused, as is the situation in the present case, Mr. Swamy allegedly delaying the trial in the complaint case, thereby also potentially compromising the progress of the PMLA case, is also a case in point.

The second leg of my argument is that in complaint cases, the ED cannot investigate until the court before which the complaint has been filed by the concerned authority has taken cognizance of the complaint. There are two legs to this argument. The first needs us to understand what the phrase ‘pending inquiry’ used above in Paragraph 31 in Vijay Madanlal Chaudhary. I argue that the stage of inquiry in a Complaint case is always post-cognisance by a magistrate, in terms of the ratio laid down by the Hon’ble Supreme Court in Rameshbhai Pandurao Hedau & Pradeep S. Wodeyar. In fact, in most places, complaint cases are not formally registered/numbered till the court has taken cognizance of the case. Dr. Abhishek Manu Singhvi, in an election affidavit filed before getting elected to the Rajya Sabha, gave a glimpse into this practice. The image is attached below.

This means that the ED, in case the scheduled offence is not registered by way of a FIR/Chargesheet but rather, a ‘Complaint pending inquiry’ filed by a person authorized to investigate that offence, can exercise jurisdiction if and only if the magistrate/court has taken cognizance of such a complaint. Where no cognizance has been taken in a complaint case, the ED cannot prosecute, as it would have no locus to investigate the case.

There is also a logical answer to why cognizance is important in ‘complaint cases’. Time and again, the highest courts of the country have decisively held that there ought to be a judicial application of mind before passing an order of cognizance. The summoning of an accused in a criminal trial is a serious matter, which must be done after a thorough examination of the evidence, both oral and documentary. A summoning order can be passed only after providing cogent reasons – this position of law was most recently reiterated and summarized by the Supreme Court in JM Laboratories. 

In complaint cases, this threshold must be strictly enforced. The reason is simple – investigations by the police are technically supposed to be monitored by the area magistrate where the police station falls, and thus, at least theoretically, the investigation is judicially monitored. In complaint cases, even by authorities, no such monitoring exists, and thus, greater scrutiny is warranted.

Limiting Private Prosecutions in Criminal Law?

Standard criminal procedure lessons in India devote some time on how the Indian criminal process can be set in motion through various ways. Section 190 - on taking cognizance of offences by courts - indicates that a Court may take such cognizance on a police report, and also on a private complaint. It places 'private complaint' [190(1)(a) Cr.P.C.] above 'police report' [190(1)(b) Cr.P.C.], interestingly enough. If a case is begun on a complaint, then the procedure under Sections 200-203 of the Cr.P.C. gets activated, before we arrive at the issue of deciding whether or not persons ought to be summoned for trial [Section 204 Cr.P.C.]. Have you ever thought that, perhaps, this makes it too easy to initiate criminal proceedings and takes away some force out of them? 

Labelling anything is meant to convey a meaning to society, guiding it on how to consider a certain phenomenon or behaviour. So, calling something a crime has historically meant to convey to society that such acts or omissions are wrong. They not only merit censure, and also attract sanctions in the form of fines, or imprisonment. This was one of those fundamental criminal law lectures, where criminal law was portrayed as a affecting society, whereas civil suits were of a more private nature. But how do we know whether something really does affect society, and how is society's will reflecting itself? While the former has never been satisfactorily explained, one method of achieving the latter was to make a public authority responsible for initiating prosecutions. The European Court of Human Rights recognised this as one of the defining features of a 'criminal' proceeding [Benham v United Kingdom, (1996) ECHR 22], and we see Prosecutors being tasked with this responsibility across jurisdiction. The merits of this are obvious; two significant ones are (i) prosecutorial guidelines ensure that only a certain degree of seriousness gets fixed with the criminal label, and (ii) there is greater uniformity in arriving at these decisions. 

In India, private prosecutions are an extremely common route adopted in criminal proceedings. These are not restricted to only the less serious, non-cognizable, variety of offences but can also form the basis of serious prosecutions for offences such as forgery, that are punishable with life imprisonment. In my limited experience, I have seen these provisions being flouted as often as they are genuinely harnessed by litigants. Since there are no few costs to be incurred, it is a common strategy to file complaint cases in order to exert pressure when parties have a set of on-going disputes. The ease with which complaint cases can be filed means that this strategy is adopted with remarkable frequency. Not only does this worsen the judicial backlog and wastes public money (often cases end up getting settled outside of court), I argue that it weakens the symbolic value that the criminal law has. This is a larger problem that private prosecution entails even if it is not mala fide. Allowing parties to invoke criminal sanctions to resolve inter-se disputes reduces the seriousness that the label of criminality attracts. It becomes trivial, reducing it to just another card that the players have up their sleeves. If you don't believe me, try speaking to ten entrepreneurs running a small to medium sized business. I can bet you that at least one of them has been involved in a Negotiable Instruments Act case (cheque bouncing), or has seen a case of Cheating [Section 420 IPC] or Criminal Breach of Trust [Sections 406, 409 IPC]. This is definitely a slippery slope, I admit. Cases where a larger societal interest may be made out will almost always have a very individualistic element with particular parties being wronged by the particular acts or omissions. I must also admit here that my argument has decidedly more appeal in a commercial context - where parties are seen as having parallel remedies in civil proceedings (so a cheating case may well see a suit for recovery of monies). But, this is exactly what supports a more selective process, that helps maintain a balance and prosecute only those disputes that have some larger societal interest.

Should private prosecutions be culled in such a commercial/business context, then? As much as I would like to see that happen, I know it is impossible to realise that idea in the context of Indian criminal law. There are two primary reasons for this - the police, and the prosecutorial system. The police are notorious for failing to register cases and pursue investigations. Investigations, on average, end up taking over a year to complete. In that time it is possible to invoke the jurisdiction of the Court through a complaint and guide a case to the point of summoning potential accused persons. Most litigants, and courts, will admit that the police are often approached in such cases for the pressure that a police investigation brings with it, rather than some investigatorial nous. But a far bigger problem is the prosecutorial setup in India, or lack thereof, despite the introduction in 2005 of a 'Directorate of Prosecutions' by Section 25-A Cr.P.C. As a matter of practice, prosecutors appear seldom involved in the decision that brings a case to Court after a police investigation, while they are statutorily empowered to withdraw cases [Section 321 Cr.P.C.]. That is in respect of cases run by the police. The situation is different for complaint cases, where there is no effective mechanism in place that allows a litigant or court to involve the Directorate of Prosecutions to decide at the outset whether cases should be prosecuted. Again, statutory mechanisms allow for a serious case to be co-opted [Section 225 Cr.P.C.], but there is nothing that allows the prosecution branch to suggest, for instance, that perhaps valuable judicial time should be spent in proceeding to trial in a case which ultimately does not display a need to invoke criminal sanctions. In England and Wales, for instance, a right of private prosecution exists but a private prosecution may be later co-opted or controlled by the Director of Public Prosecutions [Prosecution of Offences Act, 1985]. 

So we find ourselves in a peculiar situation where the solution to these problems of ineffective police and prosecutorial systems is itself coming with the added costs of inflated dockets and reduced value of the criminal law. In times like these, the criminal law certainly seems like a lost cause.

[This post was updated on 22.02.2017 at 02:15 AM]

Protest Petitions in Criminal Trial

The Criminal Procedure Code 1973 [Cr.P.C.] was amended in 2009 to introduce certain statutory rights for victims of crime. This included the introduction of a Victim's Compensation Scheme [Section 357-A Cr.P.C.] and conferring a right upon victims to appeal against judgments [By way of inserting a Proviso to Section 372 Cr.P.C.]. During my first few months of practising, though, I found that the judiciary had played an equally important role towards increasing the role of the victim. For instance, although the Cr.P.C. does not strictly envisage hearing victims while considering grant of bail, many courts allowed them an opportunity to be heard at this stage. This post focuses on another such judicial creation - the Protest Petition.

What is a Protest Petition
Simply put, a Protest Petition is a representation made by the victim/informant to the court during or after completion of investigation by the police. Today it is most commonly filed after the police file a Closure Report or B-Report under Section 173 Cr.P.C. (what was earlier commonly understood as the Final Report) wherein the police concludes the allegations are not made out against an accused. The Protest Petition, then, is an opportunity granted to the victim/complainant to raise objections against these conclusions, before the Magistrate decides to apply her judicial mind to the Final Report.

The Protest Petition through History
It was extremely fascinating to trace the development of this concept through time. I daresay I have completed this task though, and am still trudging through the decisions. For instance, while the High Courts of Patna and Calcutta had extensively dealt with the legal niceties surrounding Protest Petitions before independence, the first reported judgment from Delhi does not come before 1990 in most databases! Unfortunately, I have not yet come across any discussion of how this was a unique method by judges to ensure some measure of ensuring victims-rights, at a time when such concepts were alien to the criminal process across most parts of the world.

Another interesting facet was how the High Courts seem to have considered Protest Petitions as any representations protesting against police investigations. The term predominantly used in Calcutta was Naraji, which loosely translates to dissatisfaction. Naturally this extended to petitions filed by both accused persons and complainants/victims, although the latter far outnumber the former. Further, the Protest Petition by an accused seems to have only been filed during the investigation, whereas those by complainants were filed during as well as after conclusion of investigations.

Lastly, the consideration of Protest Petitions and acceptance of Final Reports by the police also raised important issues concerning the nature of this exercise: whether it was an executive or a judicial function. If the task was considered an executive function, this meant there was limited scope for review of such an order in revision proceedings. This is purely of historical interest now, since the present Cr.P.C. makes a clear separation between the executive and judicial functions of the magistracy. It was not always so, and there were several reports before 1973 which considered how this separation could take place (the 37th Law Commission Report discusses this to some extent).

Filing a Protest Petition
Many interesting procedural issues arose by allowing this intervention by complainants. I list some below:

• If the Magistrate has a Closure Report and a Protest Petition, can the latter be considered only if the Final Report is accepted?
• Does the Protest Petition have to be a 'Complaint' to take cognizance? 
• Must the Complainant be examined on oath under Section 200 Cr.P.C. after taking cognizance on a Protest Petition?
• If the Magistrate takes cognizance on a Protest Petition when there is a Closure Report, would the case be tried as a complaint case or one based on a police report?
• If the Magistrate has a Protest Petition and Closure Report, can the Magistrate send the police back for further investigation to file a fresh report?
• If the Magistrate is rejecting the Closure Report and accepting the Protest Petition, should the case be transferred before another Magistrate for trial?

Some of these questions can be answered with a degree of certainty. On the first question, there is no prohibition on considering the Protest Petition before accepting the Closure Report. The magistrate may well look at the protest petition beforehand and take cognizance on the Closure Report itself. The magistrate is also empowered to direct a further investigation under Section 156(3) Cr.P.C. after receiving a protest petition. Similarly, it is settled that if the magistrate does decide to take cognizance on the Protest Petition, it must satisfy ingredients of a 'Complaint' under Section 2(d) of the Cr.P.C., and then the complainant must be examined on oath before issuing summons.  

For the others, there remains some doubt though, and this comes with a cost since these questions have important consequences. For example, a complaint case allows for arguing discharge after cross-examining witnesses and such cases can be dismissed for non-appearance of the complainant. This is not so when cases are proceeded on the police report. Furthermore, if the magistrate rejects the findings in the Closure Report and takes cognizance, or direct further investigation only to take cognizance thereafter, would it not affect the appearance of justice if the trial proceeded before the same court? After all, it is not entirely unreasonable to suppose that the court has already arrived at some conclusions about the case in such situations despite the limited application of mind required at this initial stage of the criminal process. The latter is becoming increasingly pressing, though, with it becoming routine for certain courts to re-send closure reports for further investigation to gather more material and play the role of a prosecutor.

Conclusion

The Protest Petition is a crucial piece of judicial innovation much ahead of the times in giving victims a say in the criminal process. Its existence, and development, across the country over the last century directly questions notions that the role of the victim was negligible in India. Its presence today raises important questions regarding the separation between the spheres of investigation and trial. It would be insightful to compare this with other colonial jurisdictions to discern exactly how unique this practice was to India. Today, this predominantly area-specific judicial practice has attained national status. It would certainly help if the federal legislature codified the Protest Petition and made it a part of the Cr.P.C. to address the lingering ambiguities that have arisen during this transformative process. 

Judicial Appreciation at Different Stages of Trial

Criminal trials require the prosecution to prove its case beyond reasonable doubt (well, most trials at least). This is a satisfaction that the judge arrives at. But this is not the only determination that a judge has to make during the trial, that has material bearings on the life of the trial itself. The same judge is required to do this at three other instances - (i) while taking cognizance, (ii) while summoning the accused, and (iii) upon framing charge. The text of the Cr.P.C. indicates different levels of satisfaction are required to proceed further at each stage, as the stakes keep increasing. But since cases are decided by human judges and not robots, subjectivity creeps in, and so does confusion. Here, I argue a lot of confusion has crept in regarding the satisfaction required at each stage. A lot of noise has developed due to judicial dictum, obscuring what the text might have meant. Besides making the law confusing, it has also contributed to increased delays.  

Understanding the Three Stages

1. Cognizance

Cognizance is the first time a Magistrate is presented with the facts, in the form of either a Police Report [Section 190(1)(b)], or a Complaint disclosing the commission of an offence [Section 190(1)(a)], or due to facts in the knowledge of the Magistrate herself [Section 190(1)(c)]. Must a Court take cognizance upon any of these occurring? Section 190 using 'may' and not 'shall' suggests not. The Supreme Court agrees [for instance, Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668]. In suggesting there exists discretion, the Supreme Court did little to suggest how such discretion should be exercised though. Here, no support could be had from the text. Unlike other stages, Section 190 contained no test explaining the satisfaction required for taking cognizance and moving ahead. Nevertheless, the Court went ahead and created a right for aggrieved complainants to be heard at this stage as well [Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285],

Could it be though, that the Code was not intend for Magistrates to evaluate merits at this stage in any way, but only consider whether mandatory requirements were fulfilled? By mandatory requirements, I refer to the various other provisions between Section 190 and 200, that restrict the taking of cognizance. For instance, suppose a complaint under Section 497 IPC [Adultery] is filed before a Magistrate. Section 198 Cr.P.C. does not allow everyone to file complaints for this offence. So maybe, all that the Magistrate is required to do was determine whether the complaint was filed by a proper person, and then proceed? The 'may' in Section 190 Cr.P.C. continues to make sense, and we don't have any subjective discretion creeping in. The interpretation adopted by the Supreme Court opened the doors for challenges to orders on cognizance before appellate courts, causing delays at the very inception of litigation.

2. Summoning

Once the Magistrate takes cognizance of offences, the next step is summoning the proposed accused for trial. Here the Cr.P.C. clearly requires some application of mind, evident from Section 203 which allows dismissal of complaints, and the language of Section 204 which pertains to summoning. It says that there must be 'sufficient ground for proceeding' . Is this determined through argument? And, is there any objective marker to determine whether there exist such sufficient grounds? Although we haven't reached trial, the importance of this stage must not be lost. This decides whether an accused must enter appearance. Where criminal litigation was pursued to mount pressure, this may well be the most important step for litigants. Lets keep answering these questions in abeyance for now, as it is important to first briefly explain what is framing charge

3. Framing Charge
Charges are what determine a trial - this is what the accused must plead to. The Cr.P.C. envisages different trial procedures for different kinds of offences - the more serious offences get a more rigorous trial, so to speak. Framing charge is therefore not found across all trials - Sessions and Warrant cases only, as Summons cases have what is called "Framing of Notice". The Code allows the court to conclude that no charge should be framed, allowing that an accused be discharged. These provisions on discharge vary in style across the different kinds of trial, as seen on a comparison of Sections 227, 239 and 245 of the Code.

Conflating Summoning with Framing Charge

Do we Need to Argue?
Now, lets run back to those questions on summoning. Would the sufficient grounds for proceeding be determined through argument? Section 204, which talks about issue of process, comes right after provisions explaining procedure of complaints before Magistrates. A Magistrate upon reading a complaint examines the complainant on oath. He can also order a police inquiry to determine "whether or not there is sufficient ground for proceeding". If this is a Police Report, there is no such requirement as we already had a lengthy investigation. Summoning is also followed by charge in most trials, and the possibility of discharge for the accused. The Cr.P.C. requires the court to examine the record, and hear both sides, before deciding whether charges should be framed. Both these requirements are conspicuously absent at the time of summoning. To kill the suspense, the answer is that arguments on summoning are always heard when cognizance of offences is taken on a complaint case. Summons are always issued when cognizance is taken on a police report.

Amazingly, earlier the court heard both sides at this stage as well, making differences between the stages quite limited. If arguments were being advanced, naturally the complainant would rely upon the record of the case. The accused couldn't, as documents are supplied post summoning, but would secure some material to have an effective hearing. All of this obviously compounded the problem of delays. Thankfully, today an accused does not have a right of hearing at this stage [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338]. The reason was increasing delays and too many re-adjudications. Delays persist in another form, as the order remains open to scrutiny. Revision proceedings are possible despite the seemingly interim nature of the order [owing to another decision, Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551]. If the trial court dismissed the complaint and didn't issue summons, any challenge to that order must make the accused a party [Manharibhai Mujlibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517].

Levels of Satisfaction
Where summoning requires 'sufficient grounds', the discharge provisions are differently worded for the different trials. Section 227 says that the judge may discharge if there is "not sufficient ground for proceeding". Section 239 discharges where the Magistrate considers the "charge against the accused to be groundless", and Section 245 adopts this where no evidence is recorded. How do we differentiate summoning from charge? Moreover, how do we distinguish between all these tests for charge itself?

If we imagine summoning to be a stage where there is no argument, then the difference is perceptible. The former is a basic inquiry to determine whether or not one should proceed. The supporting material is not looked at, only the basic allegations in the complaint are considered. Later we have consideration of the record, and both sides being heard, making for a deeper inquiry. This also makes little of an interesting dilemma that arises when we place 204 with 227 - the court first finds sufficient grounds to proceed, only to later conclude there is not sufficient ground! But in our argumentative setup, differences become difficult to identify. When the Court hears arguments on summoning, it implicitly allows reliance on the record. Today, the materials are made exhibits during pre-summoning and considered to the extent of their admissibility and reliability. This problem is very real, and I think is visible in the three judge bench decision of Sunil Bharti Mittal [(2015) 4 SCC 609. See the observations in Pepsi Foods v. Special Judicial Magistrate, 1998 Cri LJ 1 as well]. The reasons behind this are obvious - summoning means the accused must appear in Court, and sometimes the stakes are just too high to make sure that doesn't happen,*

So what about framing charge? This is the first stage at which the accused gets to argue, and at that level there is undoubtedly a difference between this and every earlier stage. But now we have a different problem. The Complainant is, potentially, addressing the Court for the third time (and at least the second time). Although the accused is arguing, the rules of the game are already set and she cannot introduce any material now for the court's consideration [another decision, Debendra Nath Padhi v. State of Orissa, (2005) 1 SCC 568]. The accused might have some material that wipes out the allegations against him, but will not be able to rely upon it before the trial court, or even a court in revision. Only the High Court can make a difference, exercising its extraordinary jurisdiction under Section 482, Cr.P.C.

As for the levels of satisfaction required, a bare reading of the Code may lead one to think that getting discharge gets more difficult depending on how serious the offence is. But the Supreme Court disagreed and said that the different words mean nothing. All that framing charge requires is establishing a prima facie case [R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045]. What is a prima facie case? Again the Court does not help much while inserting standards for the existing text. A multiplicity of decisions express the same thing differently only to confuse further, and introduce other standards not faithful to the text - requiring grave suspicion, for instance [Niranjan Singh v. Jitendra Bhimraj, AIR 1990 SC 1962]. The text enables a court to consider the record but how far can that analysis go without it becoming a mini-trial? Hearings at this stage, and judgments, often end up relying upon decisions rendered on merits in appeals to advance an argument on fact. Is it proper, though, to rely upon such decisions for conclusions on facts, while considering the life of a case pre-trial? The routine way in which courts accept this suggests that fine lines are long gone.

Conclusion
Codification, and here I draw from the formation of the Indian Evidence Act, was an exercise where the legislature intended to divorce the law from the effects of judicial law-making. The text was to guide decision-making. A reading of the text as contained in the Cr.P.C. offers clear guidance. That guidance, or sound, appears to have been lost through the noise generated over decades of verbose dicta. Cutting through the noise to the sound is perhaps inconceivable today, but the exercise is eye-opening. I admit that the arguments in this post have an underlying fallacy - it carries an implicit faith in the judiciary. Perhaps the extra intervention by the parties remains necessary because judges are overburdened and require additional assistance. The problems created by the noise run deeper though, and I argue this has resulted in draining any clarity that might have existed in the exercise of judicial discretion through these stages of taking cognizance, summoning the accused, and framing charge.

* An interesting thought. Given that the decision in Adalat Prasad took away an accused's right to be heard at the stage of summoning, is it legal to rely upon decisions before Adalat Prasad to explain the degree of  satisfaction to determine whether sufficient grounds exist for framing charge? Would there not be a difference in the level to which a court requires to be satisfied when the accused is not there to present his case, in whatever manner and form? This would make reliance on Pepsi Foods illegal.

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 459; Devarapalli 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.

Conclusion
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.