Guwahati High Court | Criminal Judgement

From a careful reading of Section 200 of Cr.P.C., it is clear that while taking cognizance of an offence on a Complaint, the Magistrate needs to examine the Complainant on oath and the witnesses present, if any and thereafter, substance of such examination shall have to be reduced to writing, which shall be signed by the Complainant and the witnesses and also by the Magistrate. Therefore, it is apparent that the involvement of the accused person was not required at the time of taking cognizance by the Magistrate under Section 200 Cr.P.C. However, under Section 223 of BNSS, 2023 a notable change has been brought into Sub-section (1) of Section 223 of BNSS, 2023. By adding the proviso to the aforesaid Sub-section (1), (100) it has been made clear that no cognizance of an offence shall be taken by the Magistrate without giving the accused the opportunity of being heard. Therefore, it is discernable from a reading of Section 223 BNSS, 2023 that a Magistrate cannot take cognizance of an offence alleged in a Complaint without first providing the accused an opportunity to be heard. Meaning thereby, before the Magistrate takes cognizance of the matter i.e. prior to the Magistrate applying his judicial mind in the whole issue, the proviso to Sub-section (1) of Section 223 BNSS, 2023 calls for issuance of a notice to the accused. (200) What is discernable from the aforesaid proviso is that the possible object of such provision is to afford the accused an opportunity to point out potential false implications, amongst others and thereby, to avoid unwarranted harassments.

Since the term "cognizance" has been used in both the aforesaid Sections, it may be worthwhile to address the issue as to what actually means by the term 'Cognizance'. The issue is important because on the basis of taking cognizance only, the timing of issuance of notice to the accused could be decided in a complaint case. Though there are many cases and the Hon'ble Apex Court has observed about this term, in this connection, the case of R.R. Chari-vs-State of U.P. reported in AIR 1951 SC 207 can be referred to. (300) In that case, the Hon'ble Apex Court held that 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 the offence. So, a proper assessment of the complaint as well as other materials, oral or documentary needs to be done by an application of a judicial mind. Therefore, as per Section 200 of Cr.P.C., the Magistrate mandatorily needs to examine upon oath the Complainant and the witnesses present, if any and on the basis of such examination, which is required to be reduced to writing on application of judicial mind on such examination of the Complainant and the witnesses present, if any. (400)