Tag Archives: cognizance

Factories Act – Extension of Period of Limitation

The Factories Act is a special statute dealing with a specific field and provides taking cognizance of certain offences related to violation of the Act as well as Rules made thereunder and specific period of limitation has been provided under Section 106 of the Act for taking cognizance of the offences. Explanation thereto also describes manner in which limitation shall be calculated in continuing offence. However, there is no specific provision with regard to extension of period of limitation as provided under Section 473 of the Code of Criminal Procedure. Cr.P.C. is a statute general in nature and Section 4(2) of Cr.P.C., provides  that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to provisions of Cr.P.C., but subject to any enactment for the time being in force regulating manner or place of investigation, inquiring into, trying or otherwise dealing with such offence. In the Factories Act, there is specific provision  providing limitation for taking cognizance of commission of offence, including continuing offence, but there is no provision of extension of time of period of limitation, corresponding to Section 473 Cr.PC. Saugata Gupta v. State of H.P., 2020 (164) FLR 589.

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Cognizance of an offence – Can be taken only once

Cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the CRPC very clearly indicates that once the case is committed to the court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the CRPC will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge. Balveer Singh v. State of Rajasthan, (2016) 6 SCC 680.

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Powers of Magistrate Under – Section 156(3) and Section 202 CRPC

In Devarapali Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488, Madhao v. State of Maharashtra, (2013) 5 SCC 615, Rameshbhai Pandurao Hedau v. State of Gujarat, (2010) 4 SCC 185, the scheme of Sections 156 (3) and 202 has been discussed. It was observed that power under Section 156(3) can be invoked by the Magistrate before taking cognizance and was in the nature of pre-emptory reminder or intimation to the police to exercise its plenary power of investigation beginning with Section 156 and ending with report or charge sheet under Section 173. On the other hand, Section 202 applies at post cognizance stage and the direction for investigation was for the purpose of deciding whether there was sufficient ground to proceed. Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439.

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Cognizance taken by Magistrate

In Black’s law Dictionary the word “cognizance” has been defines as under:
“Cognizance/Ko(g) nezens/ Jurisdiction or the exercise of jurisdiction or power to try and determine causes; judicial examination of a matter or power and authority to make it. Judicial notice or knowledge; the judicial hearing of a cause; acknowledgment; confession; recognition.”
In oxford Dictionary the word “cognizance/ko (g) niz(e)ns/(also cognizance)” n.1. Formal knowledge or awareness –Law the action of taking judicial notice. 2. Heraldry a distinctive device or mark, especially as formerly worn by retainers of a noble house. PHRAZES take cognizance of formal attend to; take account of.”
In the New Lexicon Webster’s Dictionary of the English Language the word “cognizance” has been defined as under:—
“cog-ni-zance (kgnizens, konizens) n. the range of mental observation or awareness/the fact of being aware, knowledge/(law) the power given to a court to deal with a given matter, jurisdiction/(heraldry) a distinguishing device beyond one’s cognizance not one’s concern, outside one’s terms of reference to have cognizance or to take into one’s reckoning cognizant adj., cognize (kbgnaiz) pres. Part. Co. gniz.ing past and past part, cog.nized v.t. To make (something) an objection of cognition (O.F. conoissance, knowledge).”
The Hon’ble Apex Court has elaborately dealt with the expression “taking cognizance” in Re Chief Enforcement Officer v. Videocon International Ltd. And others, (2008) 2 SCC 492. In paras 19 and 20 the Hon’ble Apex Court deals with the expression cognizance as under:
“ The expression cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a judge, it connotes to take notice of judicially.” It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by anyone.
“Taking cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case. And no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.”
In view of the legal position, it is crystal clear that cognizance of an offence is taken depending on the facts and circumstances of the case.
Once the Magistrate takes cognizance of an offence either without discussing what are the reasons behind it, it shall be presumed that on the basis of material available before him he is satisfied that there is sufficient material for taking cognizance and if he is satisfied with those materials for taking cognizance, the detailed discussion of those materials by the learned Magistrate is not required. Further once he issues process, even without writing word ‘cognizance’ it is presumed that he has taken cognizance, the writing of word ‘cognizance is taken’ is not necessary. The reason is that by issuance of process he proceeds with the case and the accused who has been summoned for trial have sufficient opportunity to defend himself at the appropriate stage provided in the Code. In response of issuance of process/summons it is not open for the accused to challenge the summoning order on the ground that no cognizance has been taken or no satisfaction has been shown or there is no detail discussion of the material available rather he has to follow the next step of the process. Ms. Sonia Gobind Gidwani v. State of U.P., 2013 (83) ACC 312.

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Filed under Cognizance, Criminal Law