Section 210(1), BNSS 2023

Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered, may take cognizance of any offence —

(a) upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence;

(b) upon a police report (submitted in any mode including electronic mode) of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

📖 R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207

Facts: A Magistrate passed an order in a matter under investigation, and the question was whether by doing so he had taken cognizance of the offence — the answer determining whether a subsequent step required a sanction which had not been obtained at that stage.

Held: The Supreme Court held that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. The Court held that what is decisive is the purpose for which he applies his mind: he takes cognizance where he does so for the purpose of proceeding under the provisions governing complaints — examining the complainant, issuing process and so on. But where he applies his mind for some other purpose, such as ordering an investigation or issuing a search warrant or dealing with a person in custody, he does not take cognizance, because he is not at that stage proceeding against anyone. The Court held that the question is therefore one of substance and not of form, to be answered by asking what the Magistrate did and why, and not by looking for an order which says that cognizance has been taken.

Ratio: Taking cognizance involves no formal action, and occurs when a Magistrate applies his mind to the suspected commission of an offence for the purpose of proceeding. Applying his mind for some other purpose — ordering an investigation, issuing a warrant — is not taking cognizance.

📖 Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424

Facts: An order summoning accused persons was challenged on the ground that it did not record reasons, and the argument required the Court to state what a summoning order must contain and how it relates to the taking of cognizance.

Held: The Supreme Court held that cognizance is taken of the offence and not of the offender, and that the expression means taking judicial notice of an offence — a condition precedent to the initiation of proceedings by the Magistrate. It held that the summoning order under the provision corresponding to section 227 does not require a detailed or speaking order, and that the Magistrate is not obliged to explain his reasons at that stage in the manner required of a judgment; but that the order must reflect that he applied his mind to the material and was satisfied that there was sufficient ground for proceeding against the person summoned. The Court held that the standard at summoning is prima facie satisfaction, not proof; that the Magistrate is not to weigh the evidence or examine the defence; and that issuing summons is not an empty formality, since the person summoned is thereby required to face a criminal proceeding.

Ratio: Cognizance is taken of the offence and not of the offender, and means taking judicial notice of an offence. A summoning order need not be detailed, but must reflect application of mind and satisfaction that there is sufficient ground for proceeding.

⚠ The proviso to section 223 alters the sequence

It is new, and it provides that a Magistrate shall not take cognizance on a complaint without giving the accused an opportunity of being heard.

So in a complaint case the accused is now heard before the first judicial step in the proceeding — and not merely before process is issued against him.

That is a significant departure. Under the Code the accused had no role at all until process issued; a complaint could be filed, the complainant examined, and cognizance taken, without his knowing anything of it.

It does not apply to a police case, where cognizance is taken on the police report under section 210(1)(b) — the accused there having had the investigation itself, and the supply of documents under section 230, as his protection.

The position stated shortly

1. Taking cognizance is a mental act. The Magistrate applies his mind to the offence for the purpose of proceeding, and nothing is issued.

2. The issue of process is an order — a summons in a summons case, a warrant in a warrant case, as the Magistrate thinks fit.

3. Cognizance is taken of the offence, not of the offender. Process issues against a person.

4. So a Magistrate who has taken cognizance may summon a person not named in the complaint, and need not take cognizance afresh against each.

5. Section 210 permits cognizance on a complaint, a police report (in any mode including electronic mode), or information from a person other than a police officer or the Magistrate’s own knowledge.

6. Cognizance involves no formal action and occurs as soon as the Magistrate applies his mind for the purpose of proceeding: R.R. Chari.

7. Applying his mind for some other purpose — ordering an investigation, issuing a warrant — is not taking cognizance.

8. What he does next decides the question: examining the complainant on oath is cognizance; directing an investigation under section 175(3) is not.

9. A summoning order need not be detailed, but must reflect application of mind and satisfaction that there is sufficient ground for proceeding: Bhushan Kumar.

10. And the proviso to section 223 is new: no cognizance on a complaint without giving the accused an opportunity of being heard.