Section 210 of BNSS, 2023 — Cognizance of Offences by Magistrate

Introduction

Section 210 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the power of a Magistrate to take cognizance of an offence. Cognizance is the stage at which a Magistrate applies judicial mind to the facts of an alleged offence for the purpose of initiating proceedings under the criminal procedure.

The provision identifies the circumstances in which a Magistrate may take cognizance and the classes of Magistrates competent to exercise this power. It broadly continues the framework that existed under Section 190 of the Code of Criminal Procedure, 1973 (CrPC).

Meaning of Cognizance

The expression “taking cognizance” is not expressly defined in the BNSS. It generally means the judicial application of mind by a Magistrate to the facts of an alleged offence for the purpose of proceeding under the Sanhita.

Taking cognizance is different from merely receiving information about an offence. A Magistrate takes cognizance when the matter is considered judicially with a view to taking appropriate action under the criminal procedure.

Cognizance is also distinct from the later stage of issuing summons or warrants to an accused.

Statutory Basis

Section 210 of BNSS provides the principal statutory basis for cognizance of offences by Magistrates.

Under Section 210(1), a Magistrate of the first class, and a Magistrate of the second class specially empowered for this purpose, may take cognizance of an offence in the following circumstances:

1. Upon receiving a complaint of facts constituting the offence.
2. Upon receiving a police report of such facts.
3. Upon receiving information from any person other than a police officer that the offence has been committed.
4. Upon the Magistrate’s own knowledge that the offence has been committed.

The Chief Judicial Magistrate may empower a Magistrate of the second class to take cognizance of offences falling within that Magistrate’s competence to inquire into or try.

Essential Elements

1. Magistrate Must Be Competent

The power under Section 210 is primarily vested in a Magistrate of the first class.

A Magistrate of the second class can exercise this power only when specially empowered by the Chief Judicial Magistrate.

2. Cognizance May Be Taken in Four Ways

Section 210 recognises four principal sources:

• Complaint of facts constituting the offence.
• Police report concerning the facts.
• Information received from a person other than a police officer.
• The Magistrate’s own knowledge of the commission of the offence.

3. Judicial Application of Mind

Cognizance involves judicial consideration of the alleged offence. Mere receipt of information does not, by itself, necessarily amount to taking cognizance.

4. Cognizance Is of the Offence

The Magistrate takes cognizance of the offence disclosed by the facts rather than merely taking cognizance of a particular offender.

Sources of Cognizance

Cognizance on a Complaint

A Magistrate may take cognizance upon receiving a complaint containing facts that constitute an offence.

The subsequent procedure for dealing with complaints is provided in the provisions relating to complaints to Magistrates.

Cognizance on a Police Report

A Magistrate may take cognizance upon receiving a police report relating to facts constituting an offence.

This commonly follows completion of a police investigation and submission of the investigation report to the Magistrate competent to take cognizance.

Cognizance on Information from a Person Other Than a Police Officer

The Magistrate may also take cognizance on information received from a person other than a police officer that an offence has been committed.

The provision therefore does not restrict cognizance to formal complaints or police reports.

Cognizance on the Magistrate’s Own Knowledge

Section 210 also permits cognizance where the Magistrate has personal knowledge that an offence has been committed.

This situation is subject to an important safeguard under Section 211 of BNSS.

Safeguard Where Magistrate Acts on Own Knowledge

Section 211 provides for transfer on the application of the accused.

Where a Magistrate takes cognizance under Section 210(1)(c), that is, on information received from a person other than a police officer or on the Magistrate’s own knowledge, the accused must be informed, before any evidence is taken, that the accused is entitled to have the case inquired into or tried by another Magistrate.

If the accused, or any one of several accused persons, objects to further proceedings before the Magistrate who took cognizance, the case must be transferred to another Magistrate specified by the Chief Judicial Magistrate.

This safeguard is intended to address concerns that may arise when the Magistrate taking cognizance has personally received information or has personal knowledge of the alleged offence.

Cognizance and Police Investigation

Taking cognizance does not mean that the Magistrate conducts the police investigation.

Investigation is primarily a police function, while cognizance is a judicial function.

A police report submitted after investigation may provide the basis for the Magistrate to take cognizance. However, the act of taking cognizance itself involves judicial application of mind.

Cognizance and Issuing Process

Taking cognizance and issuing process are separate procedural stages.

After taking cognizance, the Magistrate may have to undertake the procedure prescribed for complaints or other proceedings before deciding whether process should be issued against the accused.

Therefore, the mere fact that cognizance has been taken does not mean that the accused has already been convicted or that the trial has commenced.

Cognizance and Commencement of Trial

Taking cognizance occurs before trial.

The broad sequence may involve:

1. Commission or alleged commission of an offence.
2. Complaint, police report, information or other legally recognised source.
3. Taking of cognizance by the competent Magistrate.
4. Further preliminary procedural steps.
5. Issue of process where legally warranted.
6. Proceedings and, where applicable, trial.

Cognizance is therefore an important preliminary judicial stage in criminal proceedings.

Powers of the Magistrate

A Magistrate competent under Section 210 may take cognizance on the statutory grounds specified in the provision.

The Magistrate must exercise the power judicially and in accordance with the procedural safeguards contained in the BNSS.

A Magistrate of the second class does not possess this power merely by virtue of being a second-class Magistrate. Specific empowerment by the Chief Judicial Magistrate is required.

Important Distinctions

Cognizance vs Investigation

Investigation concerns the collection of evidence and other investigative steps, ordinarily undertaken by the police. Cognizance is the judicial act of applying the Magistrate’s mind to an alleged offence for the purpose of proceeding under criminal law.

Cognizance vs Issuance of Process

Taking cognizance is the judicial assumption of jurisdiction over the alleged offence. Issuance of process is a subsequent procedural step by which the accused may be required to appear before the Court.

Cognizance vs Trial

Cognizance precedes trial. It does not amount to a finding of guilt and does not itself constitute adjudication of the accused’s criminal liability.

Complaint vs Police Report

A complaint is one statutory source through which cognizance may be taken. A police report is another. The two are distinct procedural routes even though both may lead to cognizance by a Magistrate.

BNSS and CrPC

Section 210 of BNSS substantially corresponds to Section 190 of the CrPC, 1973.

The basic framework remains substantially similar. Both provisions recognise cognizance on:

• a complaint;
• a police report;
• information from a person other than a police officer; and
• the Magistrate’s own knowledge.

The BNSS, however, reorganises the criminal procedure framework and renumbers the corresponding provision. The safeguard concerning transfer where the Magistrate takes cognizance on information or personal knowledge is now contained in Section 211 of BNSS.

The underlying distinction between cognizance, investigation and subsequent criminal proceedings continues under BNSS.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) primarily defines offences and prescribes punishments.

The BNSS provides the procedural framework through which those offences may be investigated and prosecuted, including the taking of cognizance by a Magistrate.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence applicable to criminal proceedings. Thus, Section 210 concerns the procedural authority of a Magistrate to take cognizance and not the substantive definition of an offence or the general law of evidence.

Important BNSS Provisions

• Section 210 — Cognizance of offences by Magistrate.
• Section 211 — Transfer on application of accused.
• Section 212 — Making over of cases to Magistrates.
• Section 213 — Cognizance of offences by Court of Session.
• Section 223 — Examination of complainant.
• Section 224 — Procedure by Magistrate not competent to take cognizance of case.
• Section 225 — Postponement of issue of process.

Common Confusions

Does every Magistrate have the power to take cognizance?

No.

Section 210 specifically recognises the power of a Magistrate of the first class and a Magistrate of the second class who has been specially empowered by the Chief Judicial Magistrate.

Can cognizance be taken only on an FIR?

No.

Section 210 recognises multiple sources, including complaints, police reports, information from persons other than police officers and the Magistrate’s own knowledge.

Is taking cognizance the same as issuing summons?

No.

Taking cognizance and issuing process are distinct procedural stages.

Is cognizance the same as conviction?

No.

Cognizance occurs at an early stage of criminal proceedings. It does not determine whether the accused is guilty.

Can a Magistrate take cognizance on personal knowledge?

Yes.

Section 210 permits cognizance on the Magistrate’s own knowledge. However, Section 211 provides a safeguard allowing the accused to seek transfer of the case to another Magistrate.

Example

Suppose a Magistrate receives a complaint alleging that a person has committed a criminal offence. If the Magistrate is competent to take cognizance and the facts disclose an offence, the Magistrate may take cognizance under Section 210.

If, instead, the police complete an investigation and submit a police report disclosing an offence, the competent Magistrate may take cognizance on the basis of that police report.

Topic at a Glance

• Topic: Cognizance of offences by Magistrate
• BNSS Section: Section 210
• Competent authority: Magistrate of the first class or specially empowered Magistrate of the second class
• Sources: Complaint, police report, information from a person other than a police officer, or Magistrate’s own knowledge
• Key safeguard: Section 211 permits transfer on application of the accused in specified circumstances
• Related provisions: Sections 212, 213, 223, 224 and 225
• CrPC counterpart: Section 190 of the CrPC, 1973

Quick Revision

• Section 210 BNSS deals with cognizance of offences by Magistrates.
• A Magistrate of the first class may take cognizance of an offence.
• A Magistrate of the second class requires special empowerment by the Chief Judicial Magistrate.
• Cognizance may be taken on a complaint.
• It may be taken on a police report.
• It may be taken on information from a person other than a police officer.
• It may also be taken on the Magistrate’s own knowledge.
• Cognizance involves judicial application of mind.
• Cognizance is distinct from investigation, issuance of process and trial.
• Section 211 provides a transfer safeguard where cognizance is taken under Section 210(1)(c).
• Section 210 substantially corresponds to Section 190 of the CrPC.

ALSO READ: Section 209 – Receipt of evidence relating to offences committed outside India

Conclusion

Section 210 of BNSS establishes the principal routes through which a Magistrate may take cognizance of an offence. By recognising complaints, police reports, other information and the Magistrate’s own knowledge as possible sources, the provision provides a broad procedural foundation for initiating judicial consideration of criminal offences. Its operation must be understood alongside Sections 211 onwards, which regulate subsequent procedural safeguards and the handling of cases by Magistrates.