Conditions Requisite for Initiation of Proceedings – Cognizance Clauses 210, 218, 223

 

Conditions Requisite for Initiation of Proceedings – Cognizance Clauses 210, 218, 223

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 signifi cant stage in the criminal trial, where a judicial offi cer, and thus the court, offi cially 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 signifi cant 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 specifi cally provides for cognizance based on complaints fi led 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’)84 take cognizance of an offence. The fi rst scenario relates 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’.85 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 85 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. 84 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.,is generally called a chargesheet, if the police concludes that a criminal offence was committed; or a fi nal 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.86 Second, in non-cognizable offences or where the police has refused to register an FIR,87 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 offi cer’. This last provision, s.190(1)(c), is generally utilised in situations where the police has fi led a closure report in cognizable cases, but the Magistrate disagrees with the closure and takes cognizance of the offence.88 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. 88 R.N. Chatterji v. Havildar Kuer Singh (1970) 1 SCC 496; Abhinandan Jha v. Dinesh Mishra (1967) 3 SCR 668. 87 S.190(1)(a) CrPC: ‘upon receiving a complaint of facts which constitutes such offence’. 86 S.190(1)(b) CrPC: ‘upon a police report of such facts’. Under the extant regime, this provisional protection for public servants, essentially turned to immunity for these offi cers. 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.89 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.90 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.91 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.92 The accused public servant would seek to take benefi t 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.93 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,94 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. 94 S.9 Prevention of Corruption Act, 1988. 93 Vijay Rajmohan. 92 Vijay Rajmohan v. Central Bureau of Investigation (2023) 1 SCC 329. 91 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. 90 Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226. 89 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. Circumstances for taking Cognizance

 The first clause of s.190(1) has been modifi ed 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 fi led 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 specifi c 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 fi led 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 person103 is treated as a ‘complaint’, rather than a ‘chargesheet’. More than a mere issue of terminology, the fi ling 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’.104 This, in turn, determines whether safeguards which guide the exercise of police powers,105 would also apply to the investigative acts of such agencies. Thus, this proviso may indicate legislative intent to not treat the entities fi ling 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 fi led by the agency is not comparable to a chargesheet.106 Other 106 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 fi led by designated offi cers, with the prior sanction of the government. 105 Such as statements of guilt made by the accused person to the police offi cer cannot be used in evidence. 104 Abdul Razzak v. Sudip Kr. Dutta Gupta 1989 SCC OnLine Cal 167; Badaku Joti v. State of Mysore (1966) 3 SCR 698. 103 An offi cer of the specialised agency, such as the Enforcement Directorate, SFIO, NIA, etc. in this context.