Page |1

ANTICIPATORY BAIL

Contents
PROPOSITION #1 – Anticipatory Bail can be taken in at Pre – FIR Stage.............................1

PROPOSITION #2 – In cases of Unnatural Death, receiving the information is sufficient to initiate

proceeding. Registration of FIR is not required.........................................................................4

PROPOSITION #3 –Media Reports are sufficient ground to seek anticipatory bail................7

PROPOSITION #4 – Cognizance is of the offence and not offender........................................9

PROPOSITION #1 – Anticipatory Bail can be taken in at Pre – FIR Stage

This extract is taken from Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565: 1980 SCC
(Cri) 465 at page 590 and 591

37. Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power
under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist
even if an FIR is not yet filed.

43. During the last couple of years this Court, while dealing with appeals against orders passed by various
High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2)
(i), (ii) and (iii). The court has, in addition, directed in most of those cases that (a) the applicant should
surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the
Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In
certain exceptional cases, the court has, in view of the material placed before it, directed that the order of
anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of
matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least
inconvenience to the individuals concerned and least interference with the investigational rights of the
police. The court has attempted through those orders to strike a balance between the individual's right to
personal freedom and the investigational rights of the police. The appellants who were refused anticipatory
bail by various courts have long since been released by this Court under Section 438(1) of the Code.

This extract is taken from Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994
SCC (Cri) 785 at page 460 and 461

50. The next vital question, in this connection that crops up for consideration is as to whether the registration
of a case and the entries in the diary relating to that case as prescribed by the Code are sine qua non for a
 Page |2

Magistrate taking into custody of a person when that person appears or surrenders or is brought before the
Magistrate and whether that person should have assimilated the characteristic of “an accused of an offence”
at that stage itself within the meaning of sub-section (1) of Section 167 or sub-section (1) of Section 437
CrPC.

51. This question is in a way answered in Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565 :
1980 SCC (Cri) 465 : (1980) 3 SCR 383] . While examining the scope of Section 438 of the Code in that
case, Chandrachud, C.J. speaking for the Constitution Bench held that: (SCR p. 418: SCC p. 590, para 37)

“The filing of a first information report is not a condition precedent to the exercise of the powers under
Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if
an FIR is not yet filed.”

52. The dictum laid down in that case indicates that the registration of a case and the entries of the case diary
are not necessary for entertaining an application for grant of anticipatory bail, but the mere imminence of a
likely arrest on a reasonable belief on an accusation of having committed a non-bailable offence, will be
sufficient to invoke that provision.

This extract is taken from Savitri Agarwal v. State of Maharashtra, (2009) 8 SCC 325 : (2009) 3 SCC
(Cri) 683 at page 333

24. While cautioning against imposition of unnecessary restrictions on the scope of the section, because, in
its opinion, overgenerous infusion of constraints and conditions, which were not to be found in Section 438
of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as
enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable
restrictions, the Constitution Bench laid down the following guidelines, which the courts are required to
keep in mind while dealing with an application for grant of anticipatory bail:

(v) The filing of first information report (FIR) is not a condition precedent to the exercise of power under
Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if
an FIR is not yet filed.

This extract is taken from Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC
694 : (2011) 1 SCC (Cri) 514 at page 735

109. A good deal of misunderstanding with regard to the ambit and scope of Section 438 CrPC could have
been avoided in case the Constitution Bench decision of this Court in Sibbia case [(1980) 2 SCC 565 : 1980
SCC (Cri) 465] was correctly understood, appreciated and applied. This Court in Sibbia case [(1980) 2 SCC
565 : 1980 SCC (Cri) 465] laid down the following principles with regard to anticipatory bail:

(a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.
 Page |3

(b) Filing of FIR is not a condition precedent to exercise of power under Section 438.

Sushila Aggarwal and Others v. State (NCT of Delhi) and Another 2020 SCC OnLine SC 98

M.R. Shah, J.

4. It is further submitted (by Shri Raval, learned Amicus Curiae) that power to grant “anticipatory bail” vests
only in the High Courts or the Courts of Sessions. It is submitted that the “anticipatory bail” can be applied
at different stages. It is submitted that even in a case where no FIR is lodged and a person is apprehending
his arrest in case the FIR is lodged, in that case, he can apply for “anticipatory bail” and after notice to the
Public Prosecutor the Court can grant “anticipatory bail”. It is submitted that even in a case where the FIR is
lodged but the investigation has not yet begun, i.e., pre investigation stage, the “anticipatory bail” can be
applied. It is submitted that “anticipatory bail” can also be applied at post investigation stage.

31. At the outset, it is required to be noted that as such the expression “anticipatory bail” has not been
defined in the Code. As observed by this Court in the case of Balchand Jain (supra), “anticipatory bail”
means “bail in anticipation of arrest”. As held by this Court, the expression “anticipatory bail” is a misnomer
inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. An
application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage
before an FIR is filed or at a stage when FIR is registered but the charge sheet has not been filed and
the investigation is in progress or at a stage after the investigation is concluded. Power to grant
“anticipatory bail” under Section 438 of the Cr.P.C. vests only with the Court of Sessions or the High Court.
Therefore, ultimately it is for the concerned court to consider the application for “anticipatory bail” and
while granting the “anticipatory bail” it is ultimately for the concerned court to impose conditions including
the limited period of “anticipatory bail”, depends upon the stages at which the
application for anticipatory bail is moved. A person in whose favour a pre-arrest bail order is made under
Section 438 of the Cr.P.C. has to be arrested. However, once there is an order of pre-
arrest bail/anticipatory bail, as and when he is arrested he has to be released on bail. Otherwise, there is no
distinction or difference between the pre-arrest bail order under Section 438 and the bail order under Section
437 & 439 of the Cr.P.C. The only difference between the pre-arrest bail order under Section 438 and
the bail order under Sections 437 and 439 is the stages at which the bail order is passed. The bail order under
Section 438 of the Cr.P.C. is prior to his arrest and in anticipation of his arrest and the order of bail under
Sections 437 and 439 is after a person is arrested. A bare reading of Section 438 of the Cr.P.C. shows that
there is nothing in the language of the Section which goes to show that the pre-arrest bail granted under
Section 438 has to be time bound. The position is the same as in Section 437 and Section 439 of the Cr.P.C.
 Page |4

36. Thus, considering the observations made by the Constitution Bench of this Court in the case of Gurbaksh
Singh Sibbia (supra), the court may, if there are reasons for doing so, limit the operation of the order to a
short period only after filing of an FIR in respect of the matter covered by order and the applicant may in
such case be directed to obtain an order of bail under Sections 437 or 439 of the Code within a reasonable
short period after the filing of the FIR. The Constitution Bench has further observed that the same need not
be followed as an invariable rule. It is further observed and held that normal rule should be not to limit the
operation of the order in relation to a period of time. We are of the opinion that the conditions can be
imposed by the concerned court while granting pre-arrest bail order including limiting the operation
of the order in relation to a period of time if the circumstances so warrant, more particularly the stage
at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before
the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage
when the investigation is complete and the charge sheet is filed. However, as observed hereinabove, the
normal rule should be not to limit the order in relation to a period of time.

S. Ravindra Bhat, J.:

93. Filing of FIR is not a condition precedent for exercising power under Section 438; it can be done on a
showing of reasonable belief of imminent arrest (of the applicant). (Para 37, Sibbia)

FINAL CONCLUSIONS

140. This court, in the light of the above discussion in the two judgments, and in the light of the answers to
the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications
under Section 438, Cr. PC:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia v. State of Punjab54, when a person
complains of apprehension of arrest and approaches for order, the application should be based on concrete
facts (and not vague or general allegations) relatable to one or other specific offence. The application
seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant
reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should
consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the
appropriateness of any condition that may have to be imposed. It is not essential that an application should
be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is
reasonable basis for apprehending arrest.

PROPOSITION #2 – In cases of Unnatural Death, receiving the information is sufficient to initiate

proceeding. Registration of FIR is not required.
 Page |5

This extract is taken from Animireddy Venkata Ramana v. Public Prosecutor, (2008) 5 SCC 368 :
(2008) 2 SCC (Cri) 600 at page 375

11. The dead body of the deceased was brought down from the bus and taken to the house. The
conductor of the bus sent an information to the Depot Manager of the State Road Transport Corporation at
Tuni. The investigating officer was also informed. A report to that effect might have been noted in the
general diary but the same could not have been treated to be an FIR. When an information is received by
an officer in charge of a police station, he in terms of the provisions of the Code was expected to reach
the place of occurrence as early as possible. It was not necessary for him to take that step only on the
basis of a first information report. An information received in regard to commission of a cognizable
offence is not required to be preceded by a first information report. Duty of the State to protect the life
of an injured as also an endeavour on the part of the responsible police officer to reach the place of
occurrence in a situation of this nature is his implicit duty and responsibility. If some incident had taken
place in a bus, the officers of Road Transport Corporation also could not ignore the same. They reached the
place of occurrence in another bus at about 1 a.m. The deceased and the injured were only then shifted to
Tuni Hospital.

This extract is taken from Durga Shankar Gupta v. State of M.P., 2006 SCC OnLine MP 291 : (2007)
2 MP LJ 233 : 2007 Cri LJ (NOC 217) 60 : 2007 Cri LR (MP) 245 at pages 234 and 236

2. Shot facts of the case for consideration of this bail application are that the deceased Kishore Tiwari was
Teacher/Lab Assistant in B.E. Subhash Higher Secondary School, Khandwa. All the applicants are
connected with Nimad Education Society. It is alleged that the applicants wanted to transfer the amount of
arrears to the Provident Fund without the consent of employees and they failed to pay the arrears to the
deceased and because of paucity of funds, the deceased committed suicide on 1-6-2006. He also left one
suicidal note. The matter was reported to Police Station Kotwali, Khandwa on 1-6-2006 and the merg was
registered. Thereafter, the matter was investigated and the Crime No. 444/06 was registered on 12-6-2006.

9. On a perusal of order impugned, I found that the learned Additional Sessions Judge has failed to call for
the record of ‘Merg’ No. 35/06 which was registered on 1-6-2006 at Police Station Kotwali, Khandwa. It is
not a condition precedent for the maintainability of anticipatory bail application that the crime should have
been registered. Registration of a crime is a procedural aspect and it has no concern with the
apprehension of arrest of the accused. If a crime or even ‘Merg’ is not registered on the basis of an
information or report submitted to the Police and the facts of the information or report are sufficient to raise
an apprehension in the mind of the accused that he may be arrested for a non-bailable offence, in such a
situation, the application of anticipatory bail would be maintainable and the person concerned would be
entitled to invoke the provisions of section 438(1) of the Code.

MANDATORY REGISTRATION OF FIR

 Page |6

This extract is taken from Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524 :
2013 SCC OnLine SC 999 at pages 60 & 61

119. Therefore, in view of various counterclaims regarding registration or non-registration, what is

necessary is only that the information given to the police must disclose the commission of a cognizable
offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is
made out in the information given, then the FIR need not be registered immediately and perhaps the police
can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether
a cognizable offence has been committed. But, if the information given clearly mentions the commission of
a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not
relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the
information is genuine, whether the information is credible, etc. These are the issues that have to be verified
during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether
the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the
information given is found to be false, there is always an option to prosecute the complainant for filing a
false FIR.

Conclusion/Directions

120. In view of the aforesaid discussion, we hold:

120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses
commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or
not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be
supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for
closing the complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by him
discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received
but only to ascertain whether the information reveals any cognizable offence.
 Page |7

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts
and circumstances of each case. The category of cases in which preliminary inquiry may be made are as
under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3
months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary
inquiry.

120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry
should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the
causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police
station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR
or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to
conduct a preliminary inquiry must also be reflected, as mentioned above.

PROPOSITION #3 –Media reports are sufficient grounds to seek Anticipatory Bail

This extract is taken from Jonathan Nitin Brady v. State of W.B., (2008) 8 SCC 660 : (2008) 3 SCC
(Cri) 627 at pages 661 & 663

ANTICIPATORY BAIL GRANTED

SOURCE OF KNOWLEDGE – MEDIA REPORTS

FIR WAS FILED AGAINST THE APPELLANT

3. Briefly stated, the facts of the case are that the appellant works as a radio jockey at New Delhi with the
radio channel “Red FM 93.5”, a channel owned by Digital Radio (Delhi) Broadcasting Limited. During the
course of regular morning show called “Morning No. 1” (hereinafter referred to as “the show”), that was
broadcasted only in New Delhi from 7-11 a.m., on 24-9-2007, the appellant discussed one Mr Prashant
 Page |8

Tamang's victory in the tele-series called “Indian Idol” telecasted on Sony Entertainment Television
Channel.

4. On 25-9-1997, it came to the appellant's knowledge through media reports that sentiments of a certain
section of the public in West Bengal were purportedly hurt given to misinterpretation of the abovesaid
discussion on the said show.

5. On 27-9-1997, certain fans of Mr Prashant Tamang, including one Mr Dinesh Gurung, filed a written
complaint which culminated in registration of FIR No. 125 of 2007 under Section 153-A of the Penal Code,
1860 (for short “IPC”) against the appellant in Sadar Police Station, Darjeeling. The remarks attributed to
the appellant in the FIR read as follows:

“If chowkidars are the Indian idols (meaning Prashant Tamang), then wherefrom we are to obtain
chowkidars.”

13. On prima facie scrutiny of the material on record, we are of the view that in the backdrop of the facts and
circumstances narrated hereinabove it is a fit case where the appellant is entitled for the grant of anticipatory
bail. We do not see any satisfactory and convincing reason for custodial interrogation of the appellant for the
alleged offence registered against him. The appellant can be interrogated by the investigating officer without
taking him in custody. We, however, do not propose to embark upon the merits of the case at this stage.

This extract is taken from Directorate of Enforcement v. P.V. Prabhakar Rao, (1997) 6 SCC 647 : 1997
SCC (Cri) 978 at page 648-649
ANTICIPATORY BAIL REVOKED BY SC
SOURCE OF KNOWLEDGE – MEDIA AND QUESTIONINGS FROM ENFORCEMENT
DIRECTORATE
FIR WAS NOT FILED AGAINST THE RESPONDENT
3. It is not necessary to set out details of the case, yet we give a brief sketch of it. A fraud costing a
whopping sum of Rs 133 crores was perpetrated by some individuals after hatching a criminal conspiracy. A
company by name M/s National Fertilizers Ltd. entered into a deal with a Turkish company known as M/s
Karsans Inc. for the supply of urea worth 38 million US dollars. The entire amount was paid to the Turkish
company through the country's foreign exchange reserve without getting even an ounce of urea in return. It
was later discovered that the siphoning of such a huge foreign exchange was the result of a well-orchestrated
conspiracy hatched by some individuals in and out of India. The Turkish company in return paid a
substantial amount to “middlemen” as “kickbacks”. The recipients of such kickbacks included those in India
and abroad.
 Page |9

4. When the print media highlighted the large dimension of the fraud the Central Bureau of
Investigation was authorised to investigate into it. It was revealed that kickbacks were received by some
middlemen in India in violation of the provisions of the Foreign Exchange Regulation Act, 1973, (for short
“FERA”). It was then that the Enforcement Directorate also came into the picture and started investigation
into offences involving FERA.
5. Some persons were already arrested including one Sambasiva Rao, who was Director of M/s Sai
Krishna Impex Ltd., Hyderabad. During investigation it appeared to the Enforcement Directorate that the
respondent is also involved in this fraud and hence efforts were made to question him but the respondent
avoided such interrogation by the officials of the Directorate on more than one occasion. In the meanwhile
the respondent, on his own, approached the High Court with a petition for an order under Section 438 of the
Code.
9. After hearing both sides and after perusing the case records (which was submitted to us in a sealed
cover by the Enforcement Director, on our request) we have no doubt that the learned Single Judge of the
High Court went wrong in exercising his discretion by granting anticipatory bail to the respondent in this
case. The learned Single Judge has observed:
“I have examined the material in order to satisfy myself whether the apprehension of the petitioner is
well founded or not. Suffice it to say that the files which are made available by the Enforcement
Directorate would disclose an accusing finger against the petitioner. Be it noted that this is not the stage
when this Court can apply any test for its acceptability and hence a superficial examination is done. It is
also not necessary to see whether this material is sufficient to file a complaint against the petitioner or
not.”
11. The learned Single Judge has taken into account the fact that all other accused arrested in connection
with this case have been released on bail. But they were released on bail only on the failure of the
investigating agency to complete the investigation within the time prescribed in the proviso to Section
167(2) of the Code. How could this respondent take advantage of that fact? We cannot overlook that the
respondent too has contributed to the non-completion of the investigation. Completion of investigation could
be achieved only by interrogating all the persons involved as well as acquainted with the matter and after
collecting all material evidence procurable. So the learned Single Judge should never have counted this point
in favour of granting anticipatory bail to the respondent.
13. When the learned Single Judge himself felt, after going through the records in this case, that the
materials already collected were capable of stretching an accusing finger towards the respondent, it was not
at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section
438 of the Code.
14. For the aforesaid reasons we allow this appeal, upset the impugned order and dismiss the application
of the respondent filed under Section 438 of the Code.
 P a g e | 10

PROPOSITION #4 – Cognizance is of the offence and not offender.

This extract is taken from Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470 at
page 23

7. In order to appreciate the contention urged before us, it is necessary to notice a few provisions. Section
190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence, that is
to say, take notice of an allegation disclosing commission of a crime with a view to setting the law in motion
to bring the offender to book. Under this provision cognizance can be taken in three ways enumerated in
clauses (a), (b) and (c) of the offence alleged to have been committed. The object is to ensure the safety of a
citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the
police does not take action or he has reason to believe that no such action will be taken by the police. Even
though the expression ‘take cognizance’ is not defined, it is well settled by a catena of decisions of this
Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made
in the complaint or police report or information and on being satisfied that the allegations, if proved, would
constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have
taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to
the offence and not the offender. Mere application of mind does not amount to taking cognizance unless
the Magistrate does so for proceeding under Sections 200/204 of the Code (see Jamuna Singh v. Bhadai
Sah [(1964) 5 SCR 37, 40-41 : AIR 1964 SC 1541 : (1964) 2 Cri LJ 468] ). It is, therefore, obvious that if on
receipt of a complaint under Section 154 of the Code in regard to a cognizable offence, an offence is
registered and the concerned police officer embarks on an investigation and ultimately submits a police
report under Section 173 of the Code, the Magistrate may take cognizance and if the offence is exclusively
triable by a Court of Sessions, he must follow the procedure set out in Section 209. That section provides
that when in a case instituted on a police report, as defined in Section 2(r), or otherwise, the accused appears
or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall commit the case to the Court of Session and remand the accused to custody.
Section 193 of the old Code and as it presently stands have a bearing and may be extracted at this stage:

“Old Code

193. Cognizance of offences by Courts of Session.— (1) Except as otherwise expressly provided by this
Code or by any other law for the time being in force, no Court of Session shall take cognizance of any
offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly
empowered in that behalf.

New Code
 P a g e | 11

193. Cognizance of offences by Courts of Session.— Except as otherwise expressly provided by this Code or
by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a
Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”

It may immediately be noticed that under the old provision a Court of Session could not take cognizance of
an offence as a court of original jurisdiction unless the accused was committed to it whereas under the recast
section as it presently stands the expression the accused has been replaced by the words the case. As has
been pointed out earlier, under Section 190 cognizance has to be taken for the offence and not the
offender; so also under Section 193 the emphasis now is to the committal of the case and no more
on the offender. So also Section 209 speaks of committing the case to the Court of Session. On a conjoint
reading of these provisions it becomes clear that while under the old Code in view of the language of
Section 193 unless an accused was committed to the Court of Session the said court could not take
cognizance of an offence as a court of original jurisdiction; now under Section 193 as it presently stands
once the case is committed the restriction disappears. More of it later but first the case-law.

This extract is taken from SWIL Ltd. v. State of Delhi, (2001) 6 SCC 670 : 2001 SCC (Cri) 1205 at page
672

6. In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence,
provisions of Section 190 CrPC would be applicable. Section 190 inter alia provides that “the Magistrate
may take cognizance of any offence upon a police report of such facts which constitute an offence”. As
per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking
cognizance of the offence, the Magistrate under Section 204 CrPC is empowered to issue process to the
accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued
against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he
is required to consider the FIR and the statements recorded by the police officer and other documents
tendered along with charge-sheet. Further, upon receipt of police report under Section 173(2) CrPC, the
Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to
the effect that no case is made out against the accused by ignoring the conclusion arrived at by the
investigating officer and independently applying his mind to the facts emerging from the investigation by
taking into account the statement of the witnesses examined by the police. At this stage, there is no question
of application of Section 319 CrPC. Similar contention was negatived by this Court in Raghubans
Dubey v. State of Bihar [AIR 1967 SC 1167 : 1967 Cri LJ 1081 : (1967) 2 SCR 423] by holding thus: (AIR
p. 1169, para 9)

“In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence
and not the offenders; once he takes cognizance of an offence it is his duty to find out who the
offenders really are and once he comes to the conclusion that apart from the persons sent up by the police
 P a g e | 12

some other persons are involved, it is his duty to proceed against those persons. The summoning of the
additional accused is part of the proceeding initiated by his taking cognizance of an offence.”

This extract is taken from Anil Saran v. State of Bihar, (1995) 6 SCC 142 : 1995 SCC (Cri) 1051 at
page 145

5. We find no force in the contention. Though the Code defines “cognizable offence” and “non-cognizable
offence”, the word ‘cognizance’ has not been defined in the Code. But it is now settled law that the court
takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind
to the offence stated in the complaint or the police report etc. cognizance is said to be taken. Cognizance of
the offence takes place when the Magistrate takes judicial notice of the offence. Whether the Magistrate has
taken cognizance of offence on a complaint or on a police report or upon information of a person other than
the police officer, depends upon further steps taken pursuant thereto and the attending circumstances of the
particular case including the mode in which case is sought to be dealt with or the nature of the action taken
by the Magistrate. Under sub-section (1) of Section 190 of the Code, any Magistrate may take cognizance of
an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of
such facts, and (c) upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.

This extract is taken from Rekha v. State of Maharashtra, (2010) 15 SCC 725 : (2012) 4 SCC (Cri) 805
at page 726

4. Having examined the provisions of CrPC including the provisions contained in sub-sections (2) and (4) of
Section 155 as well as the host of provisions dealing with the question of irregularity in the matter of
investigation, we are of the considered opinion that the High Court was not justified in setting aside the
entire proceeding on a conclusion that the charges having been framed under Section 323 IPC, the police
was incompetent to investigate into the offence and as such the very filing of the charge-sheet and at every
subsequent stages of the proceeding, are erroneous. The very purpose of investigation is to collect the
evidence relating to commission of offence for establishing the accusation against the offender. In a
matter like this, it would always be necessary for the Court to examine if the accused in any way has
been prejudiced by the steps taken by the investigating agency and further, by the Court in
proceeding with the matter. Neither do we find any prejudice on the part of the accused nor are we in a
position to hold that there was any infirmity with the investigation being conducted in the case in hand;
particularly when the police submitted the charge-sheet under Sections 324 and 341 IPC. The subsequent
order of the Magistrate framing charge under Section 323 IPC would not vitiate the investigation carried on
nor the filing of the charge-sheet.

This extract is taken from Shashikant Singh v. Tarkeshwar Singh, (2002) 5 SCC 738 : 2002 SCC (Cri)
1203 at page 744
 P a g e | 13

14. A Magistrate is empowered to take cognizance of an offence in the manner provided under Section 190
of the Code. Section 209 enjoins upon a Magistrate to commit the case to the Court of Session when it
appears to the Magistrate that the offence is triable exclusively by the Court of Session. Section 193
provides for the power of the Court of Session to take cognizance of any offence. It uses the expression
“cognizance of any offence” and not that of “offender”. These three provisions read with Section 319 make
it clear that the words “could be tried together with the accused” in Section 319 are only for the purpose of
finding out whether such a person could be put on trial for the offence. Once it is so found, as already stated,
sub-section (4) of Section 319 comes into play. On the Magistrate committing the case under Section 209 to
the Court of Session, the bar of Section 193 is lifted thereby investing the Court of Session with complete
and unfettered jurisdiction of court of original jurisdiction to take cognizance of the offence which could
include summoning of the person or persons whose complicity in the commission of crime can, prima facie,
be gathered from the material on record (see Kishun Singh v. State of Bihar [(1993) 2 SCC 16 : 1993 SCC
(Cri) 470] ).