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.

Three Judges of the Supreme Court on Sections 156(3) and 202 Cr.P.C.

A three judge bench decision of the Supreme Court in Ramdev Food Products Pvt Ltd v. State of Gujarat [Criminal Appeal 600 of 2007] was published on 16.03.2015. Seldom do we get decisions on the Cr.P.C. from a bench of more than two judges, making it important to consider this one. Having read the case, I think the judges wrongly construed the idea behind Sections 156(3) and 202 Cr.P.C. thus potentially causing a great deal of confusion owing to their superior bench strength. 

The Facts

The Appellants had filed a criminal complaint under Sections 409, 420, 467, 468 and 471 IPC and with an Application under Section 156(3) Cr.P.C. praying for directions to the police to conduct an investigation. The Magistrate disagreed, (presumably) took cognizance and ordered an investigation under Section 202 Cr.P.C. directing a report from the Police within 30 days. The Appellants moved the High Court against this order which rejected their challenge, resulting in this appeal.

The Issue and its Treatment

There are several issues of importance considered by the Court including the scope and ambit of Sections 156(3) and 202 Cr.P.C.; powers of the police while conducting an investigation under Section 202 Cr.P.C. Here, I am only concerned with the first of these, which is discussed Paragraph 13 onward. At Paragraph 22, the Court concludes:

"Thus, we answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed”. Category of cases falling under Para 120.6 in Lalita Kumari (supra) may fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."

Does the Court get it wrong?

Reconsider the quoted extract above: the Court holds that where the Magistrate finds a case made out to proceed forthwith due to credibility of information available it is appropriate to straightaway direct investigation, a Section 156(3) direction is issued. As against this, Section 202 seems to involve cases where such a clear case is not made out for the court, thus requiring postponement of issuing process.

The Court seems to have turned the logic behind these sections on its head, unfortunately. When the Magistrate directs an investigation under Section 156(3), he does so before considering whether there is a case made out to proceed forthwith. This is obvious, because such a consideration is the basic definition of taking cognizance, and it is nobody's case that Section 156(3) directions can be given post-cognizance. Directions under Section 156(3) to for investigation by the Police depend upon the kind of evidence the Applicant discloses might be relevant in the present case, and that such evidence could only be gathered through the powers of the police [Union of India v. Prakash Hinduja, (2003) 6 SCC 195; Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409]. 

As against this, Section 202 investigations occur after the Magistrate has taken cognizance, and examination of the Complainant and any witnesses led is complete. This investigation has a very limited scope, and helps to finally determine whether there is a case made out to proceed forthwith, and thus issue process under Section 204. Where the investigation reveals no case is made out, the Magistrate exercises powers under Section 203 to dismiss the Complaint [Nagawwa v. Veeranna Shivalingappa, (1976) 3 SCC 376].

Conclusion

The test in Ramdev Foods goes contrary to the text of the Code and requires a Magistrate take de-facto cognizance before deciding upon a Section 156(3) Application. Given this is a three judge bench decision, it may result in restricting possibility of relief under Section 156(3) and impact how litigants strategise and approach court. More will become clear as the case proceeds to trickle down through the rungs.

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.

Conclusion

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.