This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses the changes proposed to the proceedings pertaining to taking cognizance under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.
Judicial response to a crime, or ‘initiation of proceedings’, begins with the act of taking ‘cognizance’ of the alleged crime by a Magistrate. It is a morally and procedurally significant stage in the criminal trial, where a judicial officer, and thus the court, officially becomes aware of the commission of an offence. Cognizance is the precursor to ‘initiation of proceedings’, whereby a summons or warrant is issued against the accused and charges are framed, while also marking the end of the investigation.
The BNSS proposes three significant changes to the operation of cognizance proceedings. Firstly, it relaxes the precondition of government sanction for taking cognizance in cases involving public servants such as judges (Cl.218). This is a laudable development that brings the legislative provision in consonance with case law. Secondly, it creates an opportunity for the accused to be heard at the stage of cognizance in private complaint cases (Cl.223), and thirdly, it specifically provides for cognizance based on complaints filed under special laws (Cl.210). These two changes, however, raise concerns about their possible implications.
I. Background: Procedure for Cognizance
S.190 CrPC enumerates the situations in which the Magistrate may (and ‘must’)[1] take cognizance of an offence. The first scenariorelates to cases involving commission of cognizable offences, where the police can begin investigation and arrest the accused without permission from the court, and are generally considered to be more ‘serious’.[2] The police investigates the commission of the alleged offence after registration of an FIR, with or without arresting the accused, and at the end of the investigation, submits a report to the Magistrate. This report is generally called a chargesheet, if the police concludes that a criminal offence was committed; or a final report, if the police concludes that no criminal offence was committed. The report of the police, consisting of all evidence collected by them, forms the material on the basis of which a Magistrate takes cognizance of the commission of an offence.[3]
Second, in non-cognizable offences or where the police has refused to register an FIR,[4] a complaint regarding the commission of a crime can be submitted directly to the Magistrate, without involving the police or registration of FIR. In such cases, the Magistrate conducts their own inquiry, as opposed to a police investigation, by examining the complainant and any witnesses mentioned by the complainant. These statements, in turn, form the basis for taking cognizance in non-cognizable cases. Thus, there is a largely impermeable distinction between the investigative and judicial stages of criminal prosecution.
Lastly, cognizance is also taken based upon the Magistrate’s own knowledge or information received from any person ‘other than a police officer’. This last provision, s.190(1)(c), is generally utilised in situations where the police has filed a closure report in cognizable cases, but the Magistrate disagrees with the closure and takes cognizance of the offence.[5]
The above structure has been retained in the newly proposed bill, in Chapter XV, with the addition of changes discussed below.
II. Sanction for Prosecution of Public Servants/Judges
Cl.218 BNSS mandates that government sanction must be obtained before a Magistrate can take cognizance of an offence alleged to be committed in the course of duty by a judge, magistrate, or public servant. This corresponds to s.197 CrPC pertaining to the ‘Prosecution of Judges and public servants’. A new proviso to Cl.218 adds to this by providing a timeline of one-twenty days within which sanction must be given; and further, prescribes that where the government fails to give sanction within one-twenty days, sanction would be ‘deemed to have been accorded’ by the government.
Under the extant regime, this provisional protection for public servants, essentially turned to immunity for these officers. Instead of forestalling vexatious cases, governments often did not act on the requests for sanction even for non-frivolous complaints. Thus, the requirement for sanction has often acted as a barrier to prosecution of even prima facie legitimate cases of corruption or custodial violence.[6] Consequently, the Supreme Court took note of the inaction of governments in granting sanction, and prescribed a time limit of three months (or one hundred and twenty days) for grant of sanction.[7] Similarly, the Central Vigilance Commission has also prescribed a one hundred and twenty days time period for grant of sanction by the government under s.197 CrPC.[8] Cl.218 proviso follows on the heels of this development in jurisprudence.
The implementation of a time period did not curb the culture of impunity that developed due to delays in prosecution of public servants, due to failure of the government to grant or reject sanction.[9] The accused public servant would seek to take benefit of the delay in grant of sanction, by moving to quash the proceedings entirely. This forced the Supreme Court, in 2022, to unequivocally hold that delay in sanction would not result in quashing of the criminal proceedings, but instead subject the competent authority to administrative action and judicial review.[10] Thus, the provision of a ‘deemed sanction’ is a laudable addition to these developments initiated by the Supreme Court, in preventing the misuse of the power to grant sanction. It also mirrors case law development in the context of a parallel provision in the Prevention of Corruption Act,[11] where the Supreme Court had similarly held that if a sanction is neither granted nor refused within the prescribed period, the sanction would be deemed to be granted.
III. Opportunity for Hearing the Accused
Complications arise in the context of complaint cases, through the addition of a proviso to Cl.223 on ‘Examination of complainant’. The extant provision, s.200 CrPC, provides that the magistrate must examine the complainant and any witnesses while taking cognizance of a non-cognizable offence on the basis of a private complaint. A new caveat has been added to this provision, which prohibits taking of cognizance in complaint cases without affording the accused an ‘opportunity of being heard’.
The right to be heard, while unquestionably beneficial for an accused at any stage of criminal adjudication, has until now not been provided at the stage of cognizance. This is for multiple reasons, all relating to the nature of cognizance as a judicial function. At the outset, it may be noted that cognizance does not involve any formal action. It is the mere application of judicial mind to the suspected commission of an offence.[12] When a Magistrate reads the complaint or chargesheet, and applies their mind to determine whether the avermentsin the complaint or chargesheet disclose the commission of an offence for the purposes of proceeding further, they are said to take cognizance.[13] Courts have highlighted that at this stage, the Magistrate need not examine the evidence with a view to determine if it would support conviction of the accused, nor assess the reliability or validity of the evidence.[14] As such, the Magistrate is also not bound to give a reasoned order, nor is a superior court ordinarily allowed to substitute its opinion for the Magistrate’s. Immediately after cognizance is taken of an offence, the accused is directed to be produced, their plea of guilt or innocence is recorded, and charges are framed. The framing of charges is the first stage where the accused is permitted to be heard and make submissions relating to the commission of the crime.[15] A caveat is that in rare circumstances, where there is irrefutable evidence (sterling quality) to suggest that the prosecution version is ‘totally absurd or preposterous’, it may be brought to the notice of court at the stage of taking cognizance as well.[16]
In essence, cognizance is a stage where the law officially recognises the commission of an offence. After this, the Magistrate issues process against an accused person and affords them a right of hearing, i.e. at the framing of charges. Naturally, then, the CrPC does not envisage a right of hearing to the accused, or anyone, at the stage of taking cognizance.
This creates a host of issues, not the least of them being that the purpose of taking cognizance in complaint cases would be frustrated. Complaint cases are lodged either in cases where the offence is non-cognizable, or where, despite the offence being cognizable, the police refuses to register an FIR or the complainant is unable to register an FIR.[17] The object of allowing this is to ‘ensure the freedom and safety of the subject in that it gives him the right to come to the court if he considers a wrong has been done to him or the Republic and be a check on police vagaries.’[18] This provision is often utilised by vulnerable complainants where the perpetrator holds relatively more power. This includes instances of violence against members of the SC/ST community by persons from dominant caste; sexual violence against women by men in positions of power including those from dominant caste, class or religious community; and domestic violence against women. In these situations, the victims find it difficult, if not dangerous, to register an FIR and choose to file a private complaint instead. In the context of these power dynamics, the refusal of the police to take these allegations seriously or to register FIRs in these situations, further contributes to the victims’ difficulties. By allowing the accused an unrestricted right of hearing at this stage, under Cl.223 before even taking notice of the commission of an offence, gives scope for witness manipulation and suppression. The importance of complaint cases in ensuring ‘freedom and safety’ of victims is jeopardised.
This might also exacerbate the concerns of an already overburdened system. As per the provision in the BNSS, to even take note of a crime, the Magistrate will be required to hear every accused in a complaint case. The contours of this hearing are also not specified. Courts have been clear that accused persons have no right to produce any material, as cognizance is taken based on chargesheet /complaint,[19] apart from the aforesaid evidence of sterling quality. Judicial clarity would be needed to determine if the hearing would be limited to this point. To allow a hearing beyond that, or on the evidence, would also frustrate the purpose of taking cognizance, and be a duplication of the stage that follows immediately after, i.e. hearing on charge.
Crucially, this right has been created only in the context of complaint cases. This creates an anomalous situation, where an additional right has been created for complaint cases, whereas no such right exists where the offence has been investigated by the police. A potential explanation would be that an accused in a cognizable offence would be aware when cognizance is taken, as accused persons must (at the very least) be produced when chargesheet is filed. On the other hand, no provision mandates that the accused in a complaint case must be made aware of the lodging of a complaint or at the stage of taking cognizance. However, as discussed above, for the provision to be workable, the contours of the hearing must be clarified.
Similar concerns also arise in the context of Cl.210(3), which restrains the Magistrate from taking cognizance of allegations raised against a public servant arising in the course of discharge of official duties, until (a) receipt of a report from an officer superior to the public servant; and (b) consideration of ‘assertions made by the public servant’ regarding the incident. This may have been introduced with a view to prevent vexatious or frivolous complaints against public servants discharging their duties. However, it simultaneously raises concerns about power dynamics highlighted above, and potentially contributes to the culture of impunity generally surrounding actions of public servants.
Cl.210(3) has been duplicated in Cl.175(4). Cl.175 falls within Chapter XIII of the BNSS, which deals only with investigative powers of the police, a stage of the criminal legal process that precedes the stage of cognizance. Issues of cognizance and Magistrate’s role after investigation begin with Chapter XV. Thus, the addition of the new sub-clause (4), which is identical to Cl.210(3), does not fit in the scheme contemplated within the BNSS (or the CrPC). This is likely a clerical error.
IV. Circumstances for taking Cognizance
The first clause of s.190(1) has been modified in Cl.210(1)(a) BNSS, which now provides that cognizance may be taken of any offence ‘upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence’. The underlined text is the addition made to s.190(1)(a). Thus, cognizance of reports of specialised agencies (who are authorised under special laws to investigate specific offences) is not only explicitly included under the Cl.210(1)(a), but these ‘complaints’ are curiously treated on par with private complaints, rather than a police report.
On the face of it, this equalisation sits odd. The concerning theme with complaints filed under special laws, is that they often pertain to offences which are otherwise ‘serious’ (as they carry a punishment of more than three years’ imprisonment) and require specialised agencies for their investigation. Such specialised agencies are also authorised to undertake investigative procedures of arrest, interrogation and/or seizure. Yet, despite the gravity of offence and detailed investigation, the report submitted by the authorised person[20] is treated as a ‘complaint’, rather than a ‘chargesheet’. More than a mere issue of terminology, the filing of a chargesheet (as opposed to a complaint) at the end of the investigation is a crucial (but not decisive) barometer for whether an investigative agency acts in the role of ‘police’.[21] This, in turn, determines whether safeguards which guide the exercise of police powers,[22] would also apply to the investigative acts of such agencies. Thus, this proviso may indicate legislative intent to not treat the entities filing the complaint under special law as exercising ‘police powers’.
This addition, however, is not an unexpected development. In the context of the PMLA, the Supreme Court has held that Enforcement Directorate, the specialised agency which investigates offences therein, does not exercise ‘police powers’, and thus, the report filed by the agency is not comparable to a chargesheet.[23]Other special statutes also reflect a similar trend in the terminology adopted. The NDPS Act, 1985, allows cognizance of listed offences to be taken on the basis of a complaint filed by an officer of the Central or State government.[24] Other instances of complaints filed by authorised officers under a special law, may be found in s.439 r/w s.212 of Companies Act, 2013, and s.13(1D) FEMA, 1999. In the absence of specific provisions for taking cognizance under these special legislations, the procedure under s.190 CrPC for inter alia taking of cognizance is applicable.
[1] Umer Ali v. Safer Ali Calcutta High Court, judgment dated 19.08.1886: The Magistrate has no discretion in whether to take cognizance; if the materials prima facie disclose the commission of a criminal offence, the Magistrate must take cognizance.
[2] S.2(c) CrPC states that an offence that is punishable with death, imprisonment for life, or imprisonment for more than three years shall be cognizable.
[3] S.190(1)(b) CrPC: ‘upon a police report of such facts’.
[4] S.190(1)(a) CrPC: ‘upon receiving a complaint of facts which constitutes such offence’.
[5] R.N. Chatterji v. Havildar Kuer Singh (1970) 1 SCC 496; Abhinandan Jha v. Dinesh Mishra (1967) 3 SCR 668.
[6] Polis Project, Chasing accountability: The case of custodial deaths in India, Part IV, ‘Impunity and Complicity: The Role of the State and non-State Institutions in cases of custodial deaths in India – 4, last accessed on 26.09.2023.
[7] Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226.
[8] Ministry of Finance, Department of Financial Services (Vigilance Department), Guidelines for checking delay in grant of sanction for prosecution, F No. 5/5/2012-Vig; Central Vigilance Commission, Guidelines for checking delay in grant of sanction for prosecution, No. 005/VGL/011.
[9] Vijay Rajmohan v. Central Bureau of Investigation (2023) 1 SCC 329.
[10] Vijay Rajmohan.
[11] S.9 Prevention of Corruption Act, 1988.
[12] Sourindra Mohan Chuckerbutty v. Emperor 1910 SCC OnLine Cal 41; R.R. Chari v. State of Uttar Pradesh 1951 SCC 250.
[13] Bhushan Kumar v. State (2012) 5 SCC 424.
[14] Subramanian Swami v. Manmohan Singh (2012) 3 SCC 64.
[15] S.228 CrPC; This is not to assert that prior to the hearing on charge, no other hearings happen. In instances where, even on a private complaint, the accused has been arrested, there would be hearings prior to the hearing on charge on limited aspects of custody, bail, etc.
[16] Rukmini Narvekar v. Vijay Sataredkar (2008) 14 SCC 1.
[17] Seeni Ammal, In re, 1960 SCC OnLine Mad 115.
[18] SC Sarkar et al, The Code of Criminal Procedure, (Volume I, 12th edn, LexisNexis 2018); Chinnaswami Reddiar v. K. Kuppuswamy 1954 SCC OnLine Mad 378.
[19] State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568.
[20] An officer of the specialised agency, such as the Enforcement Directorate, SFIO, NIA, etc. in this context.
[21] Abdul Razzak v. Sudip Kr. Dutta Gupta 1989 SCC OnLine Cal 167; Badaku Joti v. State of Mysore (1966) 3 SCR 698.
[22] Such as statements of guilt made by the accused person to the police officer cannot be used in evidence.
[23] Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929; Cognizance is taken by the special court under the PMLA on the basis of this complaint filed by designated officers, with the prior sanction of the government.
