 to understand that. We would ask him what is the book and what is his journey in that and what has been experienced. And his passion for teaching and also be garnered from the fact that his earlier webinars, if we, at least on our platform, despite his ill health, but he had committed, he continued with that. And for this also, we have to persuade him and eventually we succeeded that he should share his knowledge because not a participant sees what writing that kindly asked Justice Ramkumar. And before we take questions, I will ask SK Prem Menon to say something about Justice Ramkumar and his experience or his platform of letters and as a personal as well along the virtual platform with him. And then we will take the session on this. Yeah, Mr. Prem. I am in a webinar. Let me call you later. Yeah, Mr. Prem. I will call you later. I will call the host. I will call the host. Oh, that's great. Okay. Well, to say something about Justice Ramkumar means, Justice Ramkumar, he has left an unsung, but yet significant legacy that could perhaps define what a real judge should be. Despite he being so spoken, yet he's a perfectionist for law with a very affable demeanour towards all the lawyers regardless of the kind of the gown they wear. And many of you may not know that before his elevation to the binge, Justice Ramkumar was an enormously protective trial judge. And anyone would agree with me that Justice Ramkumar was a judge of the most uncommon courtesy and chivalry of the binge as well. And we have all experienced that he really charms the way he teaches us. And if I were to just describe Justice Ramkumar's webinars, what instantaneously comes into my mind is what the great Albert Einstein comically explained the theory of his relativity. He jovially explained that if you put your finger in a boiling water, one minute will look like one hour. On the other hand, if you are sitting with your sweetheart or the person you love, one hour would seem like one minute. And Justice Ramkumar who calls himself as a civilian who turned as a confirmed criminal, in my humble opinion, is a complete judge who is a very good singer and a visitor having great passion, commitment and conscience to impart his vast knowledge. And above all, as we all know, he is one of the best and finest human beings. And today's talk, we are looking forward to understand the nuances of the term cognizance. So over to you, sir. Only one thing I will say, lot of people said that you should take more on the life. And that is why we kept the platform of 100 and the rest should automatically transfer towards the YouTube and the Facebook or the Instagram where we go live. And it is one of the rarest session that we started at five when this Zoom session is already over. Because earlier we used to keep of 1,500, then they say, no, keep the traffic towards the YouTube so that people can enjoy more and they can watch it live. So it shows the popularity of sir to the effect that at the clock of five, it was already 100. So I'm reminded what Mr. Nayar played a triple century as he's starting or Grinda Sehwag did it or Azruthin triple century. So he's always scored a century and moving forward. And with the questionnaire which sir has shared with us, I and Mr. Prem would be sharing it. So the first question is, what has been by taking cognizance of an offense? Thank you, Prem. And for the undeserving encomium showered on me. And thank you because, for the great. You deserve it by all means. I don't think, anyway, I am extremely thankful to you, to both of you. Good evening, friends. Now the first question is, what is meant by taking cognizance of an offense? See, this process is not defined in the CRPC or in any other law. It only means to become aware of or to take note of judicially, or to judicially take note of. This is what this Supreme Court attempted to say in AIR 1963 Supreme Court 765, Ajit Kumar Palit versus state of West Bengal. That is to become aware of or to take note of judicially is what is meant by taking cognizance. It's a three-judge bench. Then in chief enforcement officer versus video-cone international limited. 2008, volume 2, ACC 492, again a constitutional bench in Sarah Matthew versus Institute of Cardiovascular Diseases. 2008, 2014 Supreme Court 448, wherein a five-judge bench had reiterated the earlier views and said that, they said the same thing. Again, it was reiterated in Subramanian Swami versus Manmohan Singh, 2012, 3, ACC 64, where it was observed that cognizance means the jurisdiction or the power to try and determine the cost. The jurisdiction or the power to try and determine the cost. This is what Justice Sadashivam spoke on behalf of the bench. Now taking cognizance is not defined under the CRPG. It's a complex process starting with the decision taken to proceed under Chapter 15 and culminating in either dismissal of the complaint in a private complaint or dropping of the proceedings in a police charge case or issuance of process in both types of cases. The complicated process. It starts only with the application of mind by the magistrate. Yes. Question number two. What is the first stage of a case before a criminal court? And that stage deals with what all matters. That stage is called the conditions requisite for initiation of proceedings. Conditions requisite for initiation of proceedings. It is in Chapter 14 of the CRPC starting with section 190 to 199. In fact, these even, these are the provisions which regulate the cognizance of an offense by a magistrate. In fact, in fact, there are various sections under Chapter 14 which inter alia make certain cognizable offenses even non-cognizance. For example, see under section 1951A, 188 of the Indian Penal Code, an offense committed before a public servant, punishable under section 188 of the Indian Penal Code. Likewise, in that COVID this thing, if an offense is committed under punishable under 188 of the Indian Penal Code, cognizable offense. 1951A says, if it is committed before a public servant, the code can take cognizance only on a complaint by the concerned public servant. Even though it is a cognizable offense. Mind you, a cognizable offense is an offense which by virtue of its very nature can be a police officer is entitled to arrest the offender. Arrest the offender without a warrant from a magistrate or higher police officer. Even in such a case, when the statute says, chapter 14 says that it shall be taken cognizance of only on a complaint. Police officer can only make an arrest, arrest without a warrant. Thereafter, he has to hand over the accused to the proper officer who is entitled to file a complaint. Therefore, not understanding the fact that there are certain offenses which are cognizable under section 195, under Indian Penal Code. But not understanding that this chapter makes some cognizable offenses non-cognizable. But non-cognizable in the sense in which CRPC understands. Because how do you find out a cognizable offense or a non-cognizable offense by referring to first schedule of the CRPC? CRPC, first schedule, you get part one, all the Indian Penal Code offenses, offenses under the Indian Penal Code are enumerated under part one. Again, to each offense, column four or so, four or so, it declares that the offense, whether the offense is cognizable or non-cognizable. You find out whether an offense is cognizable or non-cognizable by reference to the first schedule to CRPC. But even where the offense is cognizable, chapter 14 contains certain provisions which make them indirectly non-cognizable because not to change the fact that it is a cognizable offense. Police officer can arrest the, except the police officer can arrest the offender. He cannot register an FIR, commence investigation, conduct in, commence investigation, conduct the investigation under chapter 12 or complete the investigation with the filing of a police report under section 173 to CRPC. Likewise, there are ever so many sections. 195, 1A pertains to offenses committed before public service. 195, 1B pertains to offenses committed before courts as defined under this section. Then there are 196. Likewise, you go up to section 199. These sections regulate the cognizance of the specified offenses under the chapter. And even in cases where a cognizable offense is there, the some provisions make them non-cognizable in the sense that police officer, not to change the fact that it is a cognizable offense. Police officer cannot register an FIR, commence investigation, complete the same under chapter 12 or file a final report. The cognizance can be taken only on the specified, on the complaint filed by the specified authority mentioned in these sections. That's it, that's all. What are the sources available for magistrate to take cognizance offence? Where do you get these sources? If you go by section 190 CRPC, it contemplates only four sources. Though some decisions say three sources. You carefully read the section. There are four sources under section 190 plus A, ABC. See, first source is upon receiving a complaint of facts constituting offense. Upon receiving a complaint of facts, constituting offense. What do you mean by complaint? Complaint as defined under section 2D CRPC. Complaint as defined under section 2D is a complaint filed before a magistrate, requesting the magistrate to take cognizance offence and proceed according to law. Now, that is the complaint. We loosely called a private complaint. A complaint is very often called a private complaint in contra distinction with a police charge. Then clause B, clause B, second source on which a magistrate can take cognizance offence is upon a police report. Police report of such facts. What is a police report? Police report has been defined under section 2R. Police report means a report filed by a police officer after the conclusion of investigation under chapter 12 CRPC. Which is, if it is a report falling under section 170 CRPC, wherein sufficient materials have been collected, incriminating material has been collected for placing the accused on trial, then you call it a charge sheet or chalan. But if it is a report falling under section 169 of the CRPC, wherein no sufficient material has been collected by the police officer in the course of investigation, then he can come to the conclusion that there's no case made out for placing the accused on trial before the magistrate. Therefore, both are police reports falling under section 2R of the CRPC. So this is the second source on which a magistrate can take cognizance offence. Third source, C, C consists of two parts. Part one is upon information from a non-police officer, upon information from a non-police officer, a magistrate can take cognizance offence. For example, supposing there is a news, in a news channel an offence is disclosed or in a newspaper an offence is disclosed, internet an offence is disclosed. These are all sources other than a source, information from a non-police officer. Magistrate will be justified in taking cognizance of the offence disclosed from information received from a non-police officer. Last source is upon the whole knowledge of the magistrate, whole knowledge of the magistrate. That is supposing a magistrate is after five o'clock, he has risen, he has stopped the work and he is going home or after reaching home, he is on an evening walk, he is on an evening stroll. While on evening stroll on the road, public road, an offence is committed, a cognizable offence is committed by two persons, by one or two persons, right in the presence of the magistrate, right in front of the magistrate. Mind you, he is the only functionary in the entire scheme of criminal trial who can take cognizance of an offence committed right in his presence. Even a high court judge or Supreme Court judge cannot. That is why we had a situation where an high court judge and a CJM, Chief Judicial Minister were having an evening walk. When a police officer found them, he immediately put a salute, salute to the CJM, no salute to the magistrate, no salute to the high court judge who is far, far superior to the CJM. Then the high court judge, how come that he saluted you? I am far superior to him, far above him. My share said, sir, I am at the cutting edge. I am at the cutting edge. I am a person who can even take cognizance of an offence, committed right in his presence. Supposing an offence is committed right in our presence. You cannot take cognizance. I can take cognizance. That is the answer given by the CJM, Chief Judicial Magistrate. That is the power of the Chief Judicial Magistrate. These are the four, these are the only four sources of taking cognizance of an offence. Section 190, CRPC. Now very often courts, even courts, even Supreme Court has used the expression, complainant, when a police officer, when an officer in charge of a police station, SHO, is given information about the commission of a cognizance of an offence. The person who gives the information is legally called the first informant, informant or first informant. He cannot be called a complainant, but very often judges and lawyers call him complainant. Complainant is not the first informant. He is the person who files a complaint as defined under section 2D, before a magistrate. It has been so clarified by the Supreme Court in Ganesha versus Sharunapar. A.R. 2014 Supreme Court, 1198. Therefore, as legally trained persons, we are not expected to call a first informant as a complainant or a de facto complainant. Some judges called the informant gives the information to the SHO as the de facto complainant. The jury complainant needs a state in every case. State is taking up the cause of the victim. Therefore, the jury complainant is the state. And some judges and lawyers called the first informant as de facto complainant. Supreme Court very clearly said the wrong statement, wrong expression. Don't call a first informant as a de facto complainant or a complainant. Complainant means the person who files a complaint as defined under section 2D, before a magistrate. Not to the person who lodges, who gives the first information to the officer in charge of a police station. What's on the question 4? Question 4, when does the magistrate take up license of an offense on a police report? The after the continuation of the investigation under chapter 12, the officer in charge of the police station files a charge sheet, police report, charge sheet in the form of a police report under section 173 to CRPC. Now, how does a magistrate take cognizance of an offense on a police report? We have very many versions, but according to me, after applying his judicial mind to the governments in the charge sheet, and after applying his mind to the materials produced by the police, along with the police report, the magistrate decides to take the case on file, take the case on file against all or any of the, supposing there are five accused persons. Supposing an offense is as per the document produced by the police, an offense is made out only against two persons. The magistrate is not bound to take cognizance against all the five persons arrayed by the police. The magistrate can take cognizance only against those two persons, and he can refuse to take cognizance against the other three. Therefore, after applying his judicial mind to the charge sheet and the materials produced by the police, the magistrate decides to proceed against all or any of the accused persons with regard to all or any of the offenses alleged. Supposing four offenses are alleged, and two offenses alone are made out. The magistrate is not bound to take cognizance with regard to the remaining two offenses. He need to take cognizance, but very often the magistrates act mechanically. They simply act on the police report by simply issuing process on the directing process to be issued on the police report. But this is the proper way of applying their mind. The magistrate, why he has to apply his mind and decide whether which all offenses are made out and against which all accused persons are arrayed by the police. And then he has to take the case on file and issue process against only those accused persons against whom specified offenses have been made out. That is the proper way of a magistrate taking cognizance on a police report. Am I clear? Yes, yes. Okay, we'll pass on. After registering an FIR for a cognizable offense, the police arrest the accused and produces him before the magistrate with a remand mode report. The magistrate applies his mind to the FIR and remand report and demands the accused to judicial custody for 14 days. Has not the magistrate taken cognizance of the offense in this particular case? See, here's a case where a cognizable offense, a cognizable offense has been committed. An FIR is registered. Same day, the police officer arrests the accused and offends them. And as in compliance of section 157, he has to send a report to the nearest magistrate regarding the registration of an FIR, competent magistrate. Then he sends the accused. He forward the accused along with the copy of the FIR and extract of the police diary, case diary to the magistrate, nearest magistrate. And the accused is forwarded to the magistrate. Now magistrate, and there is a remand report also filed by the police officer, S.H.O., requesting the magistrate to remand the accused to judicial custody for 15 days. Now the magistrate looks into the FIR, remand report applies his mind and then remand the accused to judicial custody for 15 days. Has or has not the magistrate taken cognizance of the offense? I'll play him the sixth question. Yeah, question number six. One day, no, we are not complete. Okay, that's life. I have not answered the question. Exactly. I have not answered the question. He has the magistrate taken cognizance of the offense on perusing and applying his mind to the FIR, to the remand report, to the extract of the diary extract, et cetera, forwarded to the magistrate, along with the accused. Acute is right in his presence. Acute has been remanded to judicial custody by virtue of his power under section 167, CRP. Has not the magistrate taken cognizance? There's a popular misconception that magistrate has taken cognizance of the offense. You are forgetting the four sources for taking cognizance. In a case which is investigated by the police, magistrate can take cognizance only when the FIR ultimately ripens into a police report. After the conclusion of investigation, we are at the threshold. FIR alone has been registered. By looking into the FIR or the data or the diary extract or looking into the evidence in the remand report, magistrate is not taking cognizance of the offense. Very often mistakes are committed by courts and judicial officers and also by lawyers. It is a wrong premise. My state is not taking cognizance at the crime stage, at the investigation stage. He can take cognizance because of section 190. Under section 190, in a case investigated by the police, he can take cognizance only when the case ripens into a police report. It was so held by Supreme Court in state of Karnataka versus Pastor P Raju, AIR 2006 Supreme Court, 2825. Yes, question number six. Let us discuss six situations in the context of taking cognizance of the complaint. Situation number one, at 4.30 PM, a magistrate receives a private complaint alleging the commission of a cognizable offense by the name accused during. The complainant and his witnesses are present. After going through the complaint, the magistrate looks up at the clock and adjourns the case to the next day. But do you want me to read all the six situations and then add by one? Better, yes. Okay, now situation number two. In the above situation, instead of adjourning the case, the magistrate issued a search warrant as requested by the complainant. Situation number three, in the above situation, the magistrate after making a record in the proceedings, which reads for recording the sworn statement of the complainant and witnesses, adjourns the case to the next day. Situation number four. In situation number two, the magistrate after adjourning the case, records the sworn statement of the complainant and the witnesses. Now the fifth situation. After perusing the complaint, the magistrate applies his might and forwards the complaint to the police under section 156.3 of the CRPC for investigation and report. And finally, situation number six, after recording the sworn statement of the complainant and witnesses, the magistrate issues someone's to the next day. Then the question. Then the question. Then comes the question. Question A. The first question is, has the magistrate taken cognizance of the offenses in any of the above six equations involving private companies? That's the first question. Yes. The second question is, if the magistrate has taken cognizance of the offenses in any of the above six situations involving the private companies, in which situation did the magistrate first take cognizance of the offenses? Yes. What is the first situation? First situation is, magistrate received the private complaint at about 4.30. Complaintant is in his present, in front of him. His witnesses are in attendance. The magistrate reads the entire complaint, applies his mind, and then looks up at the clock, 5 p.m. Time for me to rise. He simply adjourns the case to the next day. Question A, whether he has taken cognizance? Every one of you will definitely say he has not taken cognizance because he has not done anything except reading the complaint and looking up at the clock. Second situation. After perusing the the company. For a minute, I will mute everyone. Sir, some of it allowed everyone to be unmuted himself. I will mute everyone, then you and myself and Prem will be unmuted. Otherwise, there will be an echo. There is a cacophony. Sir, you can unmute. Yes. Okay. Now, first situation, He has simply adjourned the case. He has only read the complaint, looked up at the complainant and looked up at the clock. That's all. Second situation, he perused the complaint and then the complainant had a request for issuing a search warrant. He issued a search warrant after applying his mind to the government in the complaint and he issued a search warrant. Has he taken cognizance? Second situation. Third, my state, after perusing the complaint and after perusing the documents produced along with the complaint, made a note in the preceding paper for recording the sole statement of the complainant and the witnesses. He has not recorded. He has only written for recording the sole statement of the complainant and the witnesses. Under section 200. That's all. Then the next situation is, next situation is after on the adjourn the day, he has actually recorded this own statement of the complainant and the witnesses. Actually recorded. Then the next situation is, after reading the complaint, applying his mind, he has forwarded the complaint under section 156-3 CRPC to the police for investigation. Has he taken cognizance of the offense? This is the fifth situation. And last situation is, after recording the sole statement of the complainant and the witnesses, he actually issues process to the accused. Now the question is, has he taken cognizance of the offenses in any of these six situations? And if so, he did so in which, first did so in which of the situations. Now before answering the question, I'll give you the, the judicially settled principle. If you apply that principle, very easy to find out the answer. Supreme Court has in several decisions held that in the case of a private complain, if after perusing the governments in the complaint, the magistrate applies his mind for the purpose of proceeding under chapter 15, starting with section 200 onwards. He applies his mind for the purpose of proceeding under chapter 15, starting with section 200 onwards, magistrate can be said to have taken cognizance of the offense. So the question arose in various, in, in, in Kerala, in our judicial academy. We, we discussed these questions threadbare. These were questions set for the judicial officers. Therefore, if you are able to apply the, the law to these fact situations, you get to know the law better. Now, now, now after, after considering this principle, you, you take each and every situation, first situation, my state merely read the complaint and looked up at the clock and simply adjourned the case. He has not decided to proceed under chapter 15. Second situation, he only issued a search warrant, search warrant is issued not under chapter 15. So he did not proceed under chapter 15, nor did he decide to proceed under chapter 15. So he has not taken cognizance. Third situation, here, here also he did not record this own statement. He did not proceed under chapter 15, but he definitely made a record in his proceeding paper for recording the sound statement of the complainant. Means he has decided to proceed under chapter 15, starting with section 200 CRPC. So he did not actually record the sound statement, but he has already taken a decision to proceed under chapter 15. Now, incidentally, I, I can try to answer Mr. Premira's question. So if it amount to cognizance, is it not revisable under 482, if it or 397 CRPCs? Now, after Adalat Prasad's case, see K. Matthew, 92 Supreme Court, 92 Supreme Court, A.R. 92 Supreme Court, 2206, K. Matthew held that the magistrate can even go back to the earlier stage. Magistrate can even go back to the earlier stage, like a Munsif. But in fact, that is overruling a decision of the Kerala Aiko, Supreme Court held in K. M. Matthew, that the magistrate can, because that is the case where a police report on a summons trial case was filed. The Kerala Aiko said, once trial has started, the magistrate cannot go back to the pre-trial stage and drop the proceedings. That was the view taken by the Kerala Aiko. Supreme Court in K. M. Matthew held that no, no, the juristic to the magistrate to drop the proceedings at any stage cannot be denied in the absence of any prohibition in the CRPC. That was what K. M. Matthew held. After K. M. Matthew, various case throughout the length and breadth of the country, magistrate used to drop the proceedings even after the commencement of trial. It took almost 12 or 13 years for the Supreme Court to become wiser. Supreme Court said in Adalat Prasad versus Ruplal Jindal, AIR 2004 Supreme Court, 4674 held that no. Once trial has started, magistrate cannot retrace his step backwards. He cannot go back to an earlier stage and drop the proceedings. No such power can be given to a magistrate. In fact, virtually accepting Kerala view, the judge of the Kerala Aiko's view, that was by Justice Padminaban of the Kerala Aiko, that view was resurrected. Therefore, here is a case where the magistrate has made a record in the proceeding paper for recording the sound statement of the complainant. Can he go back in the light of Adalat Prasad's case? He cannot go back. He cannot go back to an earlier stage. Therefore, he is bound to record the sound statement. Therefore, that is why I always say that unlike a civil court, civil court, if it is a Munse for civil judge, he has got the 151 power. He can rectify a wrong step made by him. He can so much rectify unlike a criminal court. Criminal court, high court alone has got the inherent power under section 482. A magistrate or a session judge do not have the inherent power to rectify a mistake. Even a wrong step taken can be fatal before a criminal court. Now we come to the next situation. That is a case where the magistrate actually recorded the sound statement. After taking a decision to proceed under chapter 15, the magistrate actually recorded the sound statement, which is technically at the post-cognizant stage or in the process of taking cognizance. All this confusion is because CRPC doesn't define the expression, what do you mean by taking cognizance? Now, next situation. He forwarded the complaint under section 156.3 CRPC, as he proceeded under chapter 15 by forwarding the private complaint to the police under 156.3 CRPC. 156.3 CRPC is in chapter 12, not in chapter 15. So he has not decided to proceed under chapter 15. Therefore, he cannot be said to have taken cognizance as open. And the last situation is after recording the sound statement of the complainant and the witnesses, the magistrate issued process. At one point of time, courts used to feel or used to believe that issuance of process is the crucial time for taking cognizance. In fact, in one of the discussions which I had in the National Judicial Academy, a judge from a particular state, I don't mention the name or state, mentioned to the trainees, to the participants, that taking cognizance means when the magistrate issues process. I held him by his coat and told him, no, that is at the post-cognizance stage. Please, sir. And I clarified to the trainees, no, this is, of course, he can issue process if he satisfied that an offense is made out. But this is at the post-cognizance stage. No, it is not the act of taking cognizance. Now, I will give you the citations. The first citation which I have been able to lay my hands is R. R. Charri versus state of UP. A. I. R. 1951, Supreme Court 203 by three judges bench, judgment by Chief Justice Kanya. In fact, the learner Chief Justice was physically extracting a passage from a judgment of the Calcutta High Court, rendered by Justice observation of Das Gupta, Justice Das Gupta of Calcutta High Court in A. R. 1950, Calcutta 437, where the learner judges Calcutta High Court had made an observation that if after applying his mind, the magistrate decides to proceed under Chapter 15. The question is the purpose of proceeding. The question has to be, what is the purpose of the magistrate in proceeding? If he decides to proceed under Chapter 15, he can be said to have taken cognizance often. But instead of that, if he has only issued a search warrant or if he has only forwarded the complaint to the police under Chapter 12, not under Chapter 15, you can't say that the magistrate has taken cognizance. That passage was beautifully, beautiful passage was extracted by Chief Justice Kanya in R. R. Charri's case. Then comes the next three judge bench decision, Gopal Das Sindi versus state of Assam. A. R. 1961, Supreme Court 986, reiterating the same position. Of course, before that, there was one decision. A. R. 1959, Supreme Court 1118, that is Narayan Das, Bhagavan Das versus state of West Bengal. A. R. 1959, Supreme Court 1118. There also same principle was reiterated. Then comes Jamuna Singh versus Badai Shah. A. R. 1964, Supreme Court 1541, again three judges. Ever so many judges. Then came the Constitution bench decision, Mauu versus Superintendent Special Jail. 1971, Volume III, SCC 936, five judges. They reiterated the earlier decisions. Then ever so many decisions. They were apparently Leshmi Narayanam Reddy and others versus Narayanan Reddy. A. R. 1976, Supreme Court 1672, again by three judges. But in the meanwhile, there were two judges' decisions where the wrong proposition had been laid down. It's all set at rest by the Supreme Court later. Then came 2008, volume 17, SCC 157. Again, we have any number of decisions. Ultimately, then regarding the issuance of process, issuance of process Supreme Court in two decisions. One, I have already given the citation, that is state of Karnataka versus Pastor Peer Raju. 2006, SCC 728, where the Supreme Court said issuance of process is actually at the post-cognizance stage. There's one more decision of Supreme Court. Kreff, Kreff Finance, limited versus Sri Shanti Homes. 2005, SCC 747. There also Supreme Court said issuance of process is at the post-cognizance stage. Therefore, if it is a private complaint, and if the magistrate after applying his mind to the government in the complaint decides to proceed under Chapter 15, starting with Section 200, you can legitimately say that the magistrate has taken cognizance to the fine. But if instead of that, he has issued a search warrant, or if he has forwarded the complaint to the police under 153 CRPD, you can't say that he is proceeding under Chapter 15, so that there is no cognizance taken. Am I clear? Yes, sir. Can a cognizance be taken in respect of a non-cognizable offense? Yes, here also there is some confusion. In fact, I don't mention the name or the place. A judge of the High Court held, set aside, quashed the cognizance taken by a magistrate in respect of a non-cognizable offense. Because there is a popular misconception that if the offense is non-cognizable, cognizance cannot be taken by a magistrate. That's the wrong notion. In fact, one judge of the High Court quashed the cognizance taken by a magistrate in respect of a non-cognizable offense. See, the only distinction difference is in the case of a non-cognizable offense, the officer in charge of a police station cannot register an FIR or commence the investigation without an order of the magistrate under Section 155-2. Once the magistrate passes an order under Section 155-2 CRPC, then the police officer gets the jurisdiction to register FIR to commence the investigation because under Section 155 Clause 3, the police officer can treat it as a cognizable offense, as a cognizable case. Though it is non-cognizable, once magistrate issues orders under Section 155-2, it is to be treated as a cognizable case. And as you all know, it is only in respect of a cognizable offense that the police officer gets the jurisdiction to register FIR and commence the investigation because of the power under 156-156 CRPC. 156 power of the magistrate of the police officer is actually co-terminates with that of the power of the magistrate under Chapter 13. See, starting with Section 177 CRPC. See, how do you find whether the police officer, police officer has got territorial jurisdiction to register a crime? You have to look up the position of the magistrate, whether this particular police station is attached to a magistrate who has been given a particular local limits. If the offense was committed within the local limits of the magistrate and if this particular police station is also within that magistrate jurisdiction, then that is how you decide whether the police station has got jurisdiction to register a crime. Of course, there are a few decisions of Supreme Court where Supreme Court said that even if he does not have territorial jurisdiction, he is bound to register a crime, conduct investigation, file a charge. I have some reservations about that because supposing an offense is committed in Punjab, a magistrate in Cochin, a police officer in Cochin, register a crime, conduct investigation, he will be totally, he will be without his, even language problem is there, language barrier is there. He does not have the territorial jurisdiction. The proper way for a police officer to do is to register an FIR, which we very often call transfer a FIR and transfer the FIR to the police station having jurisdiction and that police alone can conduct the investigation, the file a charge it before the magistrate having jurisdiction to take cognizance and try the case. There are also, there is some confusion arising from 99 Supreme Court, Tricent Chemical, Tricent Laboratory, where the Supreme Court has without noticing section 270, 207 and 1732 has held that a magistrate need not have territorial jurisdiction for taking cognizance. Actually going, these reading those sections, a magistrate who has got jurisdiction to take cognizance and try alone can take cognizance. Anyway, that's not our problem now. Therefore, broadly speaking, if the magistrate after applying his judicial mind, as though therefore if it is a non-cognizable offense, once the magistrate gives an order under 155-2, it technically takes the color of a cognizable offense. Therefore, under section 156, the police officer has got the power to register a crime and conduct investigation. That is why and how the police conduct investigation in respect of a non-cognizable offense. And when a charge it is filed in respect of a non-cognizable offense, magistrate is bound to take cognizance if the offense is made out. Therefore, it cannot be said that in respect of a non-cognizable offense, there is no need for taking cognizance. Whether it is cognizable or non-cognizable, magistrate, if he wants to proceed further, has to take cognizance of the offense, both cognizable and non-cognizable. Yes, am I clear? Yes, sir. And now the final question. Is there any bar against taking cognizance of an offense by virtue of any permission outside chapter 14 of the CRP? We have seen that under chapter 14, even certain cognizable offenses have been made non-cognizable in the sense that the magistrate cannot take cognizance on a police report. For example, 188 of the Indian Penal Code. Now, is there any other provision in the CRP see outside chapter 14 wherein it affects the cognizance of a magistrate? See under section 468 CRP in chapter 36, 468 CRP with regard to certain offenses, categories of offenses which are punishable up to, with imprisonment up to three years. There is a limitation prescribed. So ordinarily the magistrate cannot take cognizance. Of course, there are, this is only ordinarily, there can be extraordinary situations where extra bit of justice, the magistrate can take cognizance. But that is also a a provision affecting the power of cognizance of a magistrate. I think with that we have concluded the question for today. Yes, any questions? Every question, every question will be answered to the best of my knowledge, ability and capacity. Mr. Prem can check it on the, this thing meanwhile I will check it on the YouTube. The one of the questions which was by one Darshrath, he wants to clear the doubts regarding amendment of a complaint because it's not that specific. I think it is, he wants to know whether a complaint could be amended or not. Nothing wrong in amending the complaint. Only thing is the opposite party should not be taken by surprise because the foundation, the essential foundation of the allegation should be there in the complaint already filed. And if the amendment is only to make a better, this thing then only a complaint can be permitted to be amended. Otherwise you cannot completely change the substratum of the complaint through amendment. Am I right Mr. Prem? But sir, there I would have a slight disagreement. Yes, please. In the year 2015, Supreme Court 2757, I don't remember the exact page number it is, Sugumar versus Sunad Raghura. Anamati's decision, that was a case of defamation. As a private company, some witnesses were examined, process was not issued. Subsequently, the party sought for amendment and amended the complaint on a massive scale. The Supreme Court goes on to say, is it just a decision? Yes. Supreme Court went on to say, see look here, as the statements of all the witnesses are not recorded and process has not been issued, the court has not taken court license of the offense. Do you legally justify that decision? I don't need to, but at Para 19, the court goes on to say, you can have a massive amendment because unless the opposite party is summoned, you can have a massive amendment so that multiplicity of proceedings could be avoided. That is a case where part examined matter. Supreme Court said that court reasons has not been taken. Is it not a wrong proposition of law? Regarding cognizance, of course it's a wrong proposition, but again there are moderate decisions also. I shall ask that question and then I can put the question to you sir because of course you are absolutely correct because this is a gray area. Opposite side should not be taken by surprise. Absolutely, there is absolutely no permission to CRPC unlike the CPC. Even in the CPC, even in the civil law, there should be the foundational fact. Is it not? Absolutely true because this particular judgment is a test of at least six long years. Since you are a ready-recognised law, that is why I asked you the exact page number. I have read that decision. But in fact, I wrote an article also that the view taken, that cognizance has not been taken, even in a parts examined matter, cannot be justified in law. Going by the earlier decisions of Supreme Court by larger benches, even by contusion bench, that once you decide to proceed under Chapter 15, cognizance is taken, then how can you say that even in a parts examined matter, cognizance has not been taken. At the same time sir, in question number 6, situation number 5, having 156-3, of course it is not taking cognizance. We have a number of Supreme Court judgments and this is not. But at the same time, now taking cognizance, we are all familiar with this particular term. But this is an undefined concept in criminal jurisprudence. The CRPC does not define this particular term and there is no accurate definition for this particular term. But judicial decisions, however, indicates the character and nature of what is taking cognizance within the realm of criminal jurisprudence. Now, we have a long line of decisions which you have discussed regarding the concept of cognizance. The first one, R. R. Charly, of course, Chief Justice Kaniyya and that judgment is having another peculiarity. The three judges were one was Chief Justice himself and the other were Justice Adanjali Shastri and Justice Kandas who later on became the second and fifth Chief Justice. And of course the Calcutta decision of 1950, that's one of the most brilliant judgments by Justice Kandas. So, Kaniyya sees sir, our Supreme Court in Kishan Singh versus State of Bihar, 1993, 2 SCC page 16, went on to even hold that a mere application of might does not amount to taking cognizance. That is all, that is all, that is all. But not like that, unless, kind of see the criminology, a mere application of might does not amount to taking cognizance, unless the magistrate does so for proceeding under 200 or 204 of the CRPC. Now, mere application. For proceeding, yes. Now, Supreme Court went on to say like that, according to me that this particular term, this assumes different shades, different colors in various situations or to put it otherwise. The text, that is the text of license that needs to be construed according to the context. Anil Kumar versus Ayyappa, 2013, Genesis. No, let us not discuss that decision. There is a lot of criticism again that decision. But at the same time, sir, you were referring to one judgment of 1959. Yes. The second judgment which you referred to that Narayan Das Bhagavan Das. That is referred to by the constitution Absolutely true. Narayan Das Bhagavan Das, that is a true decision which follows R. R. Chadi as well as A. R. 15 Kolkata, page 437. Now, that is a judgment which has been penned by justices Kapoor and justice Ima. There is another 1959 judgment. Of course, it is a 1958 judgment, but it is reported 1959. Pajahari Mondal's case, A. I. R. 1959 Supreme Court, page E. Yes. The same judges in this Bhagavan Das Madhavadas, you can see the Supreme Court went on to set aside the conviction of the appellate Bajahari because the appellate, he was convicted under section 165A of the IPC, which now is an offense under the PC Act. And considering section 529, E of the CRPC of 19, I mean 1898. Pallimateria, the 460 class E of the present CRPC. And the Supreme Court holds that look here, this section 529 E, that does not apply to a special judge. It merely applies to the magistrate. Not this particular judge because here also we have section 41, the monosyllable is only. And that judgment of course, as you said, as you said because this was doubted again in Manchur Purana, this particular judgment was doubted. But at the same time, just in the Supreme Court flip-flop. What can we do? See, there are judgments, 11 judges, 11 judges constitute a decision being clarified by 5 judges, 3 judges decision being overruled by another 3 judges. What can we do? But sir, the question is, suppose, of course, I do fully agree that even the text in the CRPC, the opening words of section 206, upon taking cognizance. But let me ask you, taking cognizance, the courts have held, taking cognizance means it is not an interlocutory order. Neither is a final order, it's an intermediate order. Quasi final order. Quasi final order, it's an intermediate order within the meaning of what we see in Madhulimai, KK Patel, there are so many judges. So, suppose a magistrate says, okay, I will record this one statement. So, can that particular order or can that particular procedure itself be assailed under 397 and 401? Yes. Why? Because there will be a flood of litigations as well. For example, the accused will be able to say, but one thing, the right of the accused is not affected, the right of the accused is not affected, he is not summoned. But if the magistrate has decided to proceed under chapter 15, not understanding that he may either dismiss the complaint or then issue process. Supposing, that is why Kerala Iqout, recent decision was Kerala Iqout. Kerala Iqout, recent decision has taken that. Since there is a possibility of the magistrate dismissing the complaint under section 203, 203, even if the 197 sanction is not produced, it doesn't matter. That's what the recent decision is Kerala Iqout. One judge has rendered the adjuvant and we also have a decision made. That is the recent given and that Anupama, he is officer's case. The Lennon judge has held that, since there is the possibility of the private complaint being dismissed under section 203, you can't say that just because prosecution sanction under 197 has not been produced, it is fatal. Another feather to Anil Kumar versus I.F. And that is where this K.M. Matthew comes into play, because K.M. Matthew, of course, that was thrown out by, one is by this Adalat Prasad. And secondly, the same year you have another judgment of Subramaniam Sehfuraam, just like Adalat Prasad. But how I really think that K.M. Matthew itself needs a VVC. He said? Adalat Prasad, because he closely read K.M. Matthew, because of course the trial court does not have that power under section 482, absolutely true. But at the same time, even though it does not have a power to help you, there is always a power to recall the order. For a magistrate? Yes, the magistrate should have, because here... In one situation, you are right, in one situation. For example, after the accused appears in response to the summons, if he says, I am a public servant, in the case where sanctioned for prosecution under 197 should have been issued, you took cognizance wrongly. And courts have taken the view that this issue can be raised at any stage. That may be one exception to Adalat Prasad. No sir, because if we take a particular, I would just cite a particular legal matter. Actors cure an imminent grave of it. Of course the court does say wrong. And the accused comes to the court and says, look here, you have done a wrong, so kindly undo this. Then the magistrate cannot say, no, no, I cannot revue. Then of course you have to go to the power of recalling the order. That Satyam Paiber was a Indian back in 1996, 5 SCC, 5 SCC, 5 SCC. But that power was not given to the magistrate. It is the magistrate because in Satyam Paiber, the Supreme Court went on to say that is for all the courts, all the courts. And subsequently 2012, there was another decision, 2012 Supreme Court. Again the Supreme Court says, yes, of course, but of course that was a case of fraud, in case of perpetuation. Fraud means no sanctity at all. It is non-est. But then the Supreme Court has held in so many cases that the power under 482 is not available to any of the subordinate judges, lower courts. In my humble opinion, that power should be given to the magistrate also. Why not, if Munsif can exercise 151 power, why not a magistrate under 482? Why not extend that power to the magistrate also? In very many cases, the wrong step taken can be rectified by the magistrate. Instead, the party is driven to the high court. It is driven to the necessity of going to the high court. What happened in the consumer forum? Let's assume there was a dismissal default. Then they used to say that go to the state commission for that rectification and did not have the power. Now they have amended it. Sometimes or in the Labour Court they say it becomes like a fungus official. I will take two, three questions. A short one is from the YouTube. This is by Yuvraj Thakur. Sir, who applies for the permission from the magistrate to order for investigation under section 155 CRPC? Does the police does it or a complainant? The latest view of one single judge is that he has to refer it to the complainant. The police of SHO will have to refer it to the complainant to the magistrate. That is the wording of the section. But Supreme Court has already spoken. I don't remember that citation that Supreme Court has held that 2012 Supreme Court. In 1999 Supreme Court. I have referred that judgment in an article saying that the Kerala view is not correct because the police officer may either refer him to the complain to the magistrate or the police officer can himself go to the magistrate and obtain orders. That will be the most desirable thing because we are in a people friendly police. Police have to be very people friendly. Not only that, supposing the complainant is referred to the magistrate, how will he even enter the magistrate's court single-handedly? He will have to engage a council for getting sanction even. Will he be entertained if he walks into the magistrate's court and asks for permission under 155-2? Will the magistrate entertain him? He will have to engage a council. He is being driven from pillar to post. On the contrary, it is most desirable for the police officer himself to approve the magistrate and obtain orders under 155-2. Good question. Though it is, the section says he has to be referred to the magistrate. This is by Ganesh Bhatt, important of cognizance. And then GPX Lex says whether the cognizance can be caused by a section 482? If so, under what circumstances? If there is no case made out for taking cognizance, 482 and 397, both can be involved. This is by Prabhakar Thakur. What is the liability of violation of a magistrate if he has failed to give a bail in a bailable offense? We had in Kerala, we had in Kerala such a situation. A lady magistrate was even accepted. She was corporal. There was no corporal attack on her. Virtually, she was attacked by the lawyer community for having cancelled the bail in a bailable offense. Bailable offense is a right. But then courts may commit mistake. If it is a bona fide omission on the part of the magistrate, you can't blame the magistrate. But if it is a malicious or having some motivated dismissal or a refusal to grant bail, it's a serious thing. All different. Protection under the good faith. Yes. We had Justice Marlimat who always used to say that you don't take a judicial officer to task. If what he did is though an erroneous decision, he bona fide in good faith, believes it to be the correct decision. If he is in good faith believing his decision to be correct, don't take action against him. But if a magistrate or any judicial officer with ulterior motive does something, take action against him. All depends on the good faith of the magistrate. bona fides. We have our judgments from Mahayekut also which says that, in fact, judge and the lawyer being the officer of the court, he also has to ensure that the proper assistance is there. Correct. And it is for him to show the latest judgment, not the overall judgment and the right provision of law. It amounts to professional misconduct to cite an overruled decision. Yeah, that is one judgment of Justice Emel Singh. Can an accused be discharged in a summons case? This is by Pawan. In a summons case? Police charges? Yeah. Pawan, can an accused be discharged in a summons case? Is it a police charge case? Yes, implicitly. Summons case can be a private complaint as in the police charge. This charge is not there in a summons trial. The particulars are often being read over to the accused and his plea is taken. There is no framing of charge, therefore no discharge in a summons trial. So I would like to share today that we are having one of, since we have kept the upper cap of 100 on the list, we are having one of the highest views on the YouTube. I am just watching it. Yes. And even on this platform, we are having very constant participation. Now, this is by Sudev. Documents collected during an investigation from accused, not filed by the investigation officer along with the charge. What is the remedy available to the accused? I can get the question. Whether the court magistrate can look into documents which are not filed by the police? No, no. It's the other way. Documents collected during the investigation from accused, but the investigating officer did not file it with the charge. What is the remedy to show those documents? You will have to prove that such and such documents were seized from him by the police officer without even a voucher, without even an acknowledgement. Normally, they are bound to give an acknowledgement. But if a document has been seized without any acknowledgement, you will have to prove that. It will be a downhill task for you, uphill task for you, proving an illegal seizure without any, unedited by any document, unaccompanied by any document, contemporaneous document. It will be an uphill task for the accused. This is by Naveen Kumar. Can section 161 statement be used for taking cognitions when 162 expressly bars use of 161 statement for purposes other than 162? You have not understood my, that means he has not heard me fully. The only four sources for taking cognitions under section 190 is in a police investigation charge sheet, then a private complaint, then information from a non-police officer. And when the offense is committed right in the presence of the magistrate, these are the only four sources for taking cognitions, where a police officer conducts an investigation, that FIR, even FIR, that was the case in that state of Karnataka, which was Pastor P Raju, where FIR cognitions was taken on an FIR. Kupringar said, wrong, you can't take cognitions on an FIR. FIR has to ripen into a police report. That is one of the sources for taking cognitions under section 190. So 161 is nowhere. No cognitions can be taken on a 161 statement. Vikas has posted one of the questions. I can read it or Mr. Prem can read it? Which one? Vikas, last question. Okay. Sir, in case a lit file before the High Court for registration of a FIR under section 480 to CRKC. Retender 480. That's a question. Okay. File before the High Court for registration of a FIR under section 480 to CRKC. But High Court dismissed the scene with liberty to take alternate remedy available to the petitioner. In case file before the magistrate under section 1063 with 200 and just declined to give directions for a FIR, but instead under section 200, how should petitioner approach the magistrate around evidence or not? I didn't get him fully. There is that Sakiri Vasu's case. I would just replace that question. Sir. Yes. What he says is, the complainant approaches the High Court by means of government seeking for registration of an FIR. Cannot. He cannot. High Court will not undertake. He cannot undertake. Now, the complainant comes before a magistrate and seeks invocation of section 156 clause 3 CRP. Yes. But the magistrate instead of forwarding it for an investigation, he proceeds under chapter 15. Yes. Taking his own statement. Now, how can the complainant approach the magistrate with the evidence? This is the question if I could rephrase it. See, nothing wrong if the magistrate takes cognizance on the complaint instead of forwarding it to the police under 1563. I think Mr. K. V. J. Rao had similar situation. But legally, legally. In fact, I always used to say that you cannot find a complaint solely for the purpose of forwarding it to the police under section 1563 CRP. That's a power alternate power available to the magistrate. Of course, you can make a prayer, but your main prayer should be, as mentioned in section 2D, take action. Take action if an offender has been committed by a known or unknown offender. Take action against him. That should be the prayer. But instead of, you can also have an alternate prayer, but you cannot file a private complaint with this only request to forward it to the magistrate under section 1563 CRP. And even if he files it, nothing wrong if the magistrate takes cognizance of the offense. If the ingredients of the offense are made out. We will be taking the last question by Rajesh Kumar Sahu in order for release by a magistrate. Returned by a sub-inspector on the ground that it should be communicated through the superintendent of police. Is there any way forward for that? The order for release by a magistrate was returned by the sub-inspector on the ground that it should be communicated to him through the superintendent of police. Totally illegal order. How can it dictate to the magistrate? Magistrate should route the order through the superior officer. Even otherwise, nowadays the orders are sent by mail also. The converse may be true. On the contrary, there is a Supreme Court which says, Supreme Court has a decision which says that police officers should not directly address the magistrates for getting judicial orders. They can address it only through the public app. But nowadays a lot of these orders are firstly uploaded on the website and number two they are also shared on the email by the state government also. I think it's a more presumptive question. Then by Prashant Shirdi, which documents are required for filing of the complaint before the magistrate? That all depends on the facts and circumstances. It all depends on the governments regarding the allegation of the cognizant law. And if it is a police charge case, the Supreme Court earlier took the view that even the accused can produce documents before the magistrate while framing charge. That was overruled by state of Orissa versus Devendra Nath Patti, 2005 Supreme Court, where the three-jig bench Supreme Court said held that while the framing charge by state or session court can look into the documents produced by the police only. Accused as no right to produce any document at that stage. Of course under 482, High Court can. Because Devendra Nath Patti, that was again explained by the Supreme Court in Nithya Dharamananda versus Gopal Reddy. No, the Supreme Court went on to say even at the stage of discharge, what the accused can do is he can even compel a person or the police to produce the document if they are not producing under section, I mean invoking section 901. Because in Nithya Dharamananda, the Supreme Court goes on to make use of Ayurveda, take the very scheme of discharge, then the Supreme Court goes on. Devendra Nath Patti said that even the accused cannot get a document at that stage. This is by how many judges? This is by two, but let me just tell you sir, Devendra Nath Patti, if you closely read Devendra Nath Patti, para-14 of the three-jig bench decision. Yes. It says that the accused, he cannot avail the right to file a material in his favor at the time of discharge ordinarily, see the word ordinarily. Now this particular syllable was taken by the Supreme Court, called out Devendra Nath Patti. You are not interpreting his statute. No, the Supreme Court says, the Supreme Court in Nithya Dharamananda goes on to say that if the evidence or the material is of sterling quality and there can be extraordinary situations. There can be extraordinary situations justifying the looking into the documents produced by the accused. Of course, I have seen that, I think I have seen that, but then does it not go? See, what about our judicial precedents? What about our stare decisis? What is happening to our stare decisis in this country? Sir, the logical relevance and the legal relevance, when the Supreme Court themselves say like this, because we Parminers, we cannot say anything. See, the poor Munsi for magistrate, he will follow which decision. He will follow which decision. You tell me. It's really true. This is what the Supreme Court themselves went on to say. They keep calling out one syllable from the three-jig bench and saying that it's not like Devendra Nath, I think it's paragraph number five. Yes, three judges, but Kathikalu Ogaad was clarified by Shyamlal Mohanlal, five judges. That is 11 judges. 11 judges clarified by five judges. Likewise, TMA by foundation, clarified by five judges in Islamic academic society or so. Where are we now? And he was Dutesh Singh also, Kathikalu Ogaad, that again was classified by lesser number of judges in Dutesh Singh. And in electronic evidence, we have seen a three-jig bench overruling another three-jig bench. Absolutely true. Yes, sir. So thank you to all those participants who have been watching us and some of the questions. We know that we have missed it, but since now the timeline, we normally keep that it should be one hour, 15 minutes. But keep on sharing, liking, post your comments on the YouTube channel. And those who want some specific sessions, they can also update or can ask us on our WhatsApp. And thank you to Justice Ram Kumar and Mr. Prem Raj, who took all the things in the right perspective. And I'm quite sure the way I've seen on the YouTube as well as on the Facebook, that this session is going to be loved even more than the previous one. So I've just reminded that there was an Olympian who used to do pole vault. He used to every time break the record. And that's what Justice Ram Kumar does. He comes, does a webinar. He breaches the previous webinars of viewership because he's so popular. In that event, my mission is accomplished. Thank you. So if mission would be accomplished, then this would be the last webinar. So it means the benchmark has to be created. They say that even the clearest of the water, if it is stagnant, then there has to be some dirtiness carried. So there has to be flowing water. So similarly, the flowing knowledge from you would help us. And Mr. Prem knows and the previous webinar conducted by Justice K. T. Sankaran on limitation act, we will be having the second part next week. But be that as it may, we have also started one particular part on the civil procedure court because he's good at both the sessions. And tomorrow, we have a very limited topic, which is very relevant. Otherwise, by Justice K. T. Sankaran written statement court of civil procedure. So do join us tomorrow at 5pm. Everyone stay blessed. Stay safe. And keep sharing. Like the YouTube channel and post your comments. We'll look into it. Thank you, everyone. Thank you, Mr. Prem and Justice Ram Kumar. As usual, we are indebted to Justice Ram Kumar to take the things forward, especially during these times. And everyone stay safe, stay blessed. We are masked and do social distancing. Thank you.