Taking cognizance of an offence is the first and foremost step towards trial. Cognizance is considered as judicial response to a crime or the 'initiation of the proceedings' of an alleged offence by the Magistrate. Cognizance literally means knowledge or notice, and taking cognizance means taking notice, or becoming aware about the alleged commission of an offence.
Dictionary meaning of the word ‘cognizance’ is ‘judicial hearing of a matter’. The judicial officer will have to take cognizance of the offence before he could proceed with the conduct of the trial. Taking cognizance does not involve any kind of formal action but occurs as soon as a magistrate as such applies his mind to the suspected commission of an offence for the purpose of legal proceedings. So, taking cognizance is also said to be the application of judicial mind.
A major change under Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) , replacing the Code of Criminal Procedure, 1973 (CrPC), is that the accused person shall be given opportunity of being heard before taking cognizance of an offence or directing the police to register FIR and investigate which can be termed as “pre-cognizance hearing” - a right that is given for the first time to an accused person.
Under the CrPC, any aggrieved person had a right to approach a jurisdictional court under Sections 190 and 200, and upon inquiry under the prescribed form, the jurisdictional magistrate concerned would order for an inquiry/registration of FIR or would take cognizance of the crime and initiate a trial. Section 156(3) of the old code states that a magistrate who is empowered to take cognizance under Section 190 may order investigation for the cognizable offence. Upon a private complaint, the magistrate would use his judicial mind and discretion to see if a prima facie case is made out and take the next steps. The accused had no right of audience at this stage under the old code.
However, in the new code, a major change is that the accused person shall be given opportunity of being heard before taking cognizance of an offence or directing the police to register FIR and investigate.
Section 223 of BNSS (corresponding provision is Section 200 CrPC) describes the procedure regarding examination of complainant, where sub-section 1 reads:
"A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."
As a consequence, the magistrate cannot order for an investigation, though empowered under Section 175(3) of the new code [corresponding Section 156(3)] without giving the accused an opportunity of being heard; a right that is granted for the first time ever. Furthermore, magistrates are also statutorily obliged under Section 175(3) to consider submissions made by the police (for not registering an FIR) before ordering an investigation.
In the old code, accused persons were given a chance to be heard after cognizance is taken and before framing of charges. Though the new code appears to protect the interest of an accused person before any action is initiated against them, in confirmation with the principles of natural justice, but such principle is not only misapplied at this stage of "pre-cognizance" but is also prone to adverse consequences, given the police's approach to the judicial process in the past. This "pre-cognizance" hearing, which is unknown to criminal jurisprudence, may likely lead to miscarriage of justice and could potentially become a weapon in the hands of powerful, unscrupulous persons.
In the landmark case of Lalitha Kumari v. State of UP & Ors, the Supreme Court held that registration of an FIR is mandatory if the information discloses a cognizable offense and a preliminary inquiry is not mandatory. However, preliminary inquiry was permitted in specific circumstances such as matrimonial disputes, commercial offences, medical negligence cases, corruption cases and cases with abnormal delay in reporting. But the preliminary inquiry by the police should not be misunderstood as preliminary investigation and appreciation of evidence. The scope of inquiry was only limited to know whether a cognizable case is prima facie made out or not.
A fair reading of Sections 173(4) and 175(3) read with Sections 210 and 223 of the BNSS makes it clear that if a police officer refuses to register an FIR, the person aggrieved can approach the higher authorities or a jurisdictional magistrate. But the said magistrate cannot order an investigation without considering the reasons of the police for non-registration of FIR and without hearing the accused persons. In short, more powers are given to the police officers and the powers of magistrates are limited at a pre-cognizance state.
A pre-cognizance hearing of the accused before the investigation is initiated hampers the criminal justice system and is prone to abuse by powerful criminals who can escape from prosecution. It is common knowledge that the police in India refuse to register FIRs even in serious offences. With the above changes, we only must wait and watch if the police and administration will abuse the new code or put it to proper use. The pre-cognizance hearing will only overburden the district judiciary as it could lead to multiplicity of proceedings before the charges are framed. It could also overburden the High Courts with quashing petitions under Section 528, BNSS (482 CrPC).
