Cognizence U/S 204 Cr.P.C.

See there is a subtle difference between taking of cognizance and issue of process under section 204 Cr.P.C. If you go strictly by law, as soon as a complaint is received by the Court and it decides to apply its judicial mind, it is cognizance. So when a complaint is received and sent to a magistrate for inquiry, it is post cognizance. It is only after cognizance that the proceeding reaches the stage from 200 to 204 of Cr.P.C. Hence when a Court dismisses a complaint under section 204, it is not refusal to take cognizance. Rather it is the result of inquiry post cognizance, i.e after full application of judicial mind that the court decides whether to issue process u/s 203 or dismiss it u/s 204. However when a magistrate rather than applying its own mind decides to send the same to police for investigation u/s 156(3) it is not cognizance. In this case the court after receipt of report from police decides whether a case is made out for taking cognizance or not. This sending of complaint to police is not identical to the one sent under section 202. U/s 156(3) the police comes into picture before any inquiry, whereas in case of 202 it is only after cognizance and inquiry, that the magistrate forms an opinion whether some further investigation by police is required or not. However as I understand from your query, some magistrate has just on the basis of complaint and accompanying affidavit issued summons. Except in case of an offence exclusively U/s 138 N.I Act, no court can do this. Elaborate procedure is prescribed under section 200 and 201 of Cr.P.C. You must go through them personally.

taking cognizance means applying the judicial mind  to the facts and circumstances,of the case ,whether it amounts to be an offence by its bear reading the magistratewill procced with the case .if the magistrate finds it a false complaint he may dismiss the same on receipt from the police that there is nooffence in the  complaint  had made out ,then the case will be dismissed.The order to the police to enquire into is not cogniazace in true sense.

Mr Arvind kumar is asking for remedy after issue of process.

Once a process is issued , very limited options are available before the accused for its reversal.

Since you are asking remedites after issue of process.   So if you have a case based on facts and circumstances the accused can go in revision for recall/cancellation of process.

Please remember that :

1) Truth and facts are always defferent. Facts may tell a story but truth may be absolutely defferent. You have to do hard work to dig out truth. If you can find real truth which is defferent than facts ; you have a strong case.

2) Another imp aspect for an advocate is   MORALS   and LAW.

Things may not be correct if you apply strict moral principles. However you have duty towards cleint , to defend him against all odds. It is the grit and courage of a defense advocate that he / she finds loopholes in any story and prepares the case for the client even when everybody is crying from the rooftop against him or her.

I am highly obliged to receive your kind opinion Sir, I am searching and gone through several judgments passed by the Hon'ble Apex Court as well as diferent High Court. At present the citation is not highlighted in my mind, which has noted in my personal diary today in the morning in which apex court has observed that without recording statement on oath U/S 200, 202 Cr.P.C. If magistrate has taken cognizence strateway against the accused person that is not sustainable in the eye of law ,even cognizable offence made out against the accused. I am thinking over this aspect seriously. Help me.

You are right. Examination of complainant U/s 200 Cr.P.C is sine qua non for a proceeding instituted on a complaint.

Sir, but one thing also found by me that Under N.I. Act the examination on oath Under Section 200 and 202 of the Cr.P.C. is not necessary. The complaint filed alongwith the statement of complainant on affidavit/ averment of the afidavit of the complainant treated as the statement under Section 200, 202 Cr.P.C. and cognizence taken.

Mr.  once a complaint is filed before a learned Magistrate, He can either postpone the issuance of process under section 204  of the CRPC and after verification of the complainant on oath, order an inquiry under section 202 of the code of Criminal procedure.  But remember , this is optional.  Ld. Magistrate can certainly issue process under section 204 of the CRPC if he prima facie finds that the offence might have been committed by the accused. 

IF you find that the process issued under section 204 of the CRPC is bad in law , you can challenge the same under section 482 of the Code of Criminal Procedure before the Hon'ble High Court  within the territorial jurisdiction of which the court of learned Judicial Magistrate is situated. 

As per the recent judgements of the Hon'ble Supreme Court of India, once the process is issued by the Ld. Magistrate under section 204 of the CRPC, he has no jurisdiction to recall his order.  At the same time, the order under section 204 of the CRPC is interlocutory in nature and therefore, the same can not be challenged in revision before the Sessions Court or the High Court. Therefore, only remedy available to you is to challenge under section 482 of the code of criminal procedure .

Samip Oza,

Advocate

Gujarat HIgh Court.

09825756360

Dear Arvind, Mr. Samip Oza has detailed your issue. S. 190 is for taking cognizance. 190 (1) (a) is the provision applicable in your case. How ever you have to file a revision for remedy.  Adv. K.C. Suresh, Kerala

SIR,
I M A VOCTIM OF 498A NOW THE CASE IS ON TRIAL WHERE MY WIFE IS BLACK MAILING THAT I HAVE TO GIVE MY SON AS IN RETURN FOR A COMPROMISE MY SON WAS GIVEN TO ME BY HIGH COURT AS THE JUDGENMENT WAS THAT DISPUTE SHOULD BE SETTLED IFAMILY COURT,
MORE WHAT WEIGHT DO I HAVE IF I HAD MADE SOME GOOD F/DS IN JOINT A/C WHICH SHE DOES NOT NO THE MAIN AIM HER WAS TTO GET ME SEPERATED.
WHAT ROLE DO VOICE RECORDING PLAY.
PLS HELP

You don't go for compromise. Please co-relate with the Judgment of High Court by which son had been given in your custody and file divorce petition against your wife.

sir, pls help me. my wife filed a complaint u/s190 crpc for taking cognizance of the offence u/s 307, 323, 504, 506, 120b, r/w 34 ipc against me and 3 other family members and an unknown lady. it came to my knowledge when i reached the court to appear in another case filed by my wife. the case is false. the judge is under some kind of influance by my wife and her brother, who's an advocate. similarly has happened to me in past also when my wife filed a case u/s498,406, 323, 504, 506 IPC and 3/4 dowry prohibition act. at that time my wife was living seprate from me since 2 years. to fortify the complaint she alleged me for abducting my daughter, when she pretend, then she said i have beaten her brutly. the court has taken the cognizance in the complaint u/s 156(3) crpc, on this incident, u/s 498 etc. the same judge sent me to Judicial custody for 6days, for no reason, before i got the bail from sessions. because of such an act by the advocate and the judge, m quit sure that this time also they will take cognizance against me for attempt to murder etc. the case has been filed in november last year. the next date is in march for statement u/s200 crpc. pls tell me that how can i stop the court from taking the cognizance. else pls tell me what will happen next, i.e. after statement u/s200. what is the proceedure, so that i can prepair myself.

regards

jain

Why different questions are mixed. It is better if they are posted separately.

m sorry for that. actually m confussed. my qus was relating to the same, i.e. complaint u/s190 cr.p.c. my confussion is, what is the role of the accused at the stage of the pre cognizance in complaint u/s 190 cr.p.c.  if he doesnt have any choice till the cognizance, then what is the procedure after the cognizance, how should he counter the same.

sir ji, could you please tell me some about these limited options for the accused in pre cognizance and post cognizance stages. it could be very useful for me. so please share your experience with me. thank you and regards. jain