Cognizance

What is 'Cognizance'

The term is based on the old French term “connaissance” and the Latin term “cognoscere”. Cognizance means “to get to know, recognize” or “become aware of”. The Merriam-Webster dictionary defines it as “to notice or give attention to (something)”. It is a word of indefinite import & is not always used in exactly the same sense.

The Black’s Law Dictionary defines cognizance as “Jurisdiction, or exercise of jurisdiction, or power to try and determine causes; judicial examination of a matter, or power and authority to make it.

The term generally means to “judicially take notice of an offence and then pass subsequent orders”. In law, the term has been used since the 1560s as, "the exercise of jurisdiction, the right to try a case" (mid-15c.) meaning "acknowledgement, admission".

Official Definition

The term cognizance has not been defined in the Criminal Procedure Code, 1973, or the Bharatiya Nagarik Suraksha Sanhita, 2023. In criminal trials, the process of taking cognizance is a vital step as it serves as the initial response by the Judiciary to the alleged crime. This involves a Magistrate or judicial officer becoming aware of the crime, after which the court officially acknowledges the commission of an offence.

Term as defined in Case laws

However, it has been interpreted by various judicial pronouncements by the Supreme Court of India.

In the case of Ajit Kumar Palit v. State of West Bengal, it was held that cognizance has no esoteric or mystic significance in criminal law or procedure. It merely means “become aware of” and when used with reference to a court or judge, “to take notice judicially”.

In the case of R.R. Chari vs. State of Uttar Pradesh, the Supreme Court has held that “cognizance does not involve any formal action. It occurs as soon as the Magistrate applies his mind to the suspected commission of offence. At this stage, the purpose is solely to determine whether there is sufficient ground for taking judicial notice of an offence, with a view to initiate further proceedings”.

In Tula Ram vs. Kishore Singh, it was held that “taking cognizance means the judicial application of the mind of the Magistrate, to the facts mentioned in the complaint, with a view to take further action”.

In Subramanian Swamy v. Manmohan Singh it was observed - “Though, the term `cognizance' has not been defined either in the 1988 Act or the CrPC, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance, cognizance is "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially".

Legal Provisions Related to Cognizance

What does 'Taking Cognizance' Means

The term “taking cognizance” has been discussed in criminal procedural laws. Chapter XIV of the Code of Criminal Procedure, 1973 & Chapter XV of the Bharatiya Nagarik Suraksha Sanhita, 2023 describe the methods by which and the limitations subject to which various courts are entitled to take cognizance of offences.

Section 210 of BNSS (Section 190 of CrPC) explains when cognizance can be taken by a Magistrate of first class or a Magistrate of second class empowered by the Chief Judicial Magistrate. According to this provision, a magistrate can take cognizance of an offence in three ways:

1. Upon receiving a complaint of facts, which may include a complaint filed by a person authorized under any special law that constitutes such an offence.
2. Upon a police report, submitted in any mode, including electronic, of such facts.
3. Upon information received from any person other than a police officer, or upon one's own knowledge that such an offence has been committed.

The newly passed BNSS, 2023 has introduced certain changes to the provision making it more defined and clear. The new provision explicitly includes that cognizance can be taken of a complaint of facts received from a person authorised under any special law as well. Further, it clearly mentions that cognizance can be taken of a police report received in any mode including, electronic mode.

The term “taking cognizance” does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence for the purpose of proceeding to take subsequent steps (under Section 200 or Section 202, or Section 204) towards inquiry and trial. It includes the intention of initiating a judicial proceeding against an offender in respect of an offence or taking steps to see whether there is a basis for initiating a judicial proceeding.

At the time of taking cognizance, the court is not required to scrutinize the evidence closely, but it has only to satisfy itself that a prima facie case is made out against the accused. Besides allegations in the complaint, the Magistrate should consider all evidence on record while taking into account that.

Whether cognizance has been taken by the magistrate or not is a question of fact to be determined in each case. Cognizance is always taken of the offence and not of the accused. Hence, at the stage of framing of charges, an accused may seek a discharge, if he or she can show that there are insufficient materials for framing of charges him/her.

A magistrate could take cognizance of a case upon complaint even if he had earlier refused to take cognizance of the case on a police report.

Limitations to the Power of Taking Cognizance

Whether or not a judicial officer or magistrate has taken cognizance of an offence depends on the purpose for which they applied their mind to the complaint. If they apply their mind to proceed with the complaint then they have taken cognizance of the offences. However, if they only ordered an investigation or issued a search warrant, they cannot be said to have taken cognizance of the offence.

If a magistrate who is not empowered to take cognizance of a complaint or police report does so erroneously in good faith, then the proceedings will not be set aside merely not on the ground of him not being so empowered.

But if a magistrate who is not empowered to take cognizance does so upon information received from any person or upon his own knowledge then the proceedings shall be void.

No sessions court (including Special courts) can take cognizance of any offence as a court of original jurisdiction except when it has been committed to it by the Magistrate under the Code or expressly provided in the Criminal Procedure code or any other law.

An Additional Sessions Judge may preside over cases that the Sessions Judge of the division has transferred to him for trial by a general or special order. Additionally, the High Court may also direct the Additional Sessions Judge to try certain cases by issuing a special order.

Sections 215 to 222 of BNSS, 2023 (Section 195 to 199 of CrPC,1973) lay down limitations on the power of the Magistrate to take cognizance. These limitations can be categorised as follows -

1. Offences involving contempt of the lawful authority of public servant (s.172 to 188 IPC) (s. 229 to 233 of BNS excluding 209) except on the written complaint of the concerned public servant.
2. Offences against public justice (s.193-196, 199, 200, 205 to 211 IPC) (s. 229 to 233, 236, 237, 242 to 248 BNS) except on the written complaint of the concerned court.
3. Offences relating to documents produced in court (s. 463, 471, 475, 476 IPC) (s. 336, 340(2) & 342 of BNS) except on the written complaint of the court concerned.
4. Offences against the State etc. except with the previous sanction of the appropriate govt. or in certain cases, of the District Magistrate.
5. Offences of criminal conspiracy to commit an offence punishable with less than two years’ imprisonment except with the written consent of the State Government or the District Magistrate.
6. Offences committed by judges or public servants acting in the discharge of their official duties except with the previous sanction of the appropriate govt.
7. Offences committed by the members of the armed forces acting in the discharge of the official duties except with the previous sanction of the appropriate govt.
8. Offences against marriage (s. 493 to 498 IPC) (s. 81 to 84 BNS) except on a complaint of the person aggrieved.
9. Rape by husband against his minor wife (s. 376 IPC) (64 BNS) except when the complaint is filed within one year
10. The offence of defamation (s. 499 to 502 IPC) (356 BNS) except upon a complaint of some person aggrieved.

Research that engages with the term

This blog analyses the changes brought in by the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 to the procedure of taking cognizance.

International Experiences

In the Australian law dictionary cognisance has been defined as “to take cognisance of something (to be cognisant of it) is to be aware of it or know it, and to take its presence or effect into account”.

The Laws of New Zealand defines jurisdiction as 'the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision'. Jurisdiction is a substantive power to hear and determine a matter. Jurisdiction may be conferred by the statute under which the court is constituted ('statutory jurisdiction') or it may be 'inherent' in a particular court ('inherent jurisdiction').

In American law, as well cognizance has not been specifically defined but the term jurisdiction is used in the same sense. A court must have jurisdiction to enter a valid, enforceable judgment on a claim. Where jurisdiction is lacking, litigants, through various procedural mechanisms, may retroactively challenge the validity of a judgment. Jurisdiction may be broken down into two categories: personal jurisdiction and subject matter jurisdiction. Personal jurisdiction is the requirement that a given court have power over the defendant, based on minimum contacts with the forum. Subject-matter jurisdiction is the requirement that a given court has the power to hear the specific kind of claim that is brought to that court. The term cognizance is used more in the sense of recognition of facts while determining jurisdiction.

In UK laws as well the term cognizance is not used in the sense it is used in India.

Related Terms

Initiation of Proceedings

Cognizance is entirely different from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. It is taken of cases and not of persons. It has, thus, reference to the hearing & determination of the case in connection with an offence.

Issuance of process

It is important to understand that taking cognizance and the issuance of process are not the same thing. Cognizance is taken at the initial stage when the Magistrate reviews the complaint to determine whether an offence has been committed. The issuance of process, on the other hand, occurs at a later stage when the Court decides to proceed against the offenders, only if a prima facie case is made out after considering the evidence. It is possible to file a complaint against several persons, but the Magistrate may choose to issue process only against some of the accused. Additionally, after taking cognizance and examining the complainant on oath, the Court may find that no case is made out for the issuance of process, and may reject the complaint.

Sou moto cognizance

Suo motu cognizance refers to the inherent power vested in the judiciary to act by their own notice in the interest of justice without petition or interest being brought before them. As per Article 142 of the Indian Constitution, the Supreme Court has the authority to pass any decree or order deemed necessary for complete justice in any cause or matter before it. The Supreme Court and High Courts can issue directions to do or refrain from doing an act under Article 32 and Article 226 of the Indian Constitution, respectively. Suo motu cognizance can be taken by the Supreme Court or High Courts in various circumstances, including contempt of court, the reopening of old cases, and the investigation of new cases.