 “Cognizance” as per section 190 of CRPC:

Section 190 of CrPC provides that any magistrate of the first-class and any magistrate of the
second-class specifically empowered by the Chief judicial Magistrare can take cognizance of any
offence upon receiving a complaint; upon a police report; or upon information received from any
person other than a police officer or upon his own knowledge that such offence has been
committed

The term, taking cognizance has not been defined anywhere in the Code of Criminal Procedure.
In literal sense, it means ‘knowledge’ or ‘to become aware of’,1 but when used with reference to
a Court or a Magistrate, it means to take ‘judicial notice of an offence’. Taking cognizance
actually does not involve any formal action by the judge or magistrate, because as soon as a
magistrate applies his mind to the suspected commission of an offence for the purpose of taking
subsequent steps under criminal procedure code for example summoning an accused on the basis
of the information available for enquiry or trial, cognizance can be said to have been taken.
Cognizance can be understood in simple terms as looking through a narrow keyhole and
examining whether an offence has been committed or not, and if at all it has been committed
then whether proper sections of the IPC or any other special enactment are attracted or not. The
underlying policy of law or objective of cognizance is to ensure a ‘judicial check’ on the police,
as a judicial officer by taking cognizance examines whether the offences have been actually
made out or not. Thus the word cognizance has been used in the Code to indicate the points
when the Magistrate or Judge for the first time takes judicial notice of an offence.2

Cognizance will be said to have been taken only when there is a prime facie case i.e.
examination at this stage will be whether the matter presented in the case is sufficient enough to
take further proceedings under the procedural law. In Nupur Talwar v. CBI3 , the Supreme
Court held that whenever the magistrate takes cognizance of an offence, there is no
pronouncement upon the guilt of the accused. It was held that cognizance is simply a frame of
mind that there is prima facie evidence against the accused that he might be involved in the case,
it has nothing to do with the pronouncement of guilt of the accused. The Court further held that
the higher courts must exercise utmost restraint and must not interfere with the concurrent
findings of the magistrate at the stage of cognizance. At this stage the magistrate has to examine
in the circumstances of that particular case upon his own ‘judicial prudence’ as to whether the
further proceedings shall be taken or not in the interest of justice. It was also held that against the
order of cognizance revision can be filed before the High Court or Court of session, but the
higher courts should not as a matter of routine interfere in the orders of the magistrate at this
stage and the provisional powers in such cases should be exercised sparingly.

1
Ajit Kumar Palit v. State of W.B., AIR 1963 SC 765
2
R.R Chari v. State of U.P., 1963 SCR (1) 121
3
Nupur Talwar v. CBI, (2012) 11 SCC 465
In plenty of other cases such as, Fakhruddin Ahmad v. State of Uttranchal, Uma Shankar
Singh v. State of Biharand, Anuran Rastogi v. State of UP, the Apex court has held that the
magistrate is not bound by the opinion of the investigating officer and he is competent to
exercise his discretion at this stage irrespective of the view expressed by the police in the report.
Even if the investigating authorities are of the view that no case has been made out against the
accused, the magistrate can apply his mind independently to the materials contained the police
report and take cognizance of the upon in the exercise of powers under section 190 (1) (b) CrPC,
as the magistrate is not bound to take cognizance of the offences indicated in the police report is.

Section 190 of the Code empowers the magistrate to take cognizance of an offense in cases
where the victim does not lodge an FIR in the police station due to any reason or in cases where
the police refuse to admit FIR reported by any victim. Thus, this provision is meant to safeguard
the interests of the victims while keeping a check on the unfettered powers of the police. So the
stage of taking cognizance is an important ‘judicial check’ or safeguard on the powers of the
police and is an essential facet of the rule of law. It ensures that if an innocent has been wrongly
brought to book by the police then he will not have to unnecessarily go through a judicial trial,
and also if he has been wrongly framed under the wrong actions of the penal law, then the
magistrate can examine the validity of these charges at the very outset and to nip in the bud
injustice, at the very outset.

 “Discharge” as per section 227 of CRPC:

Discharge Application is a remedy that is granted under CrPC to the person who has been
maliciously charged. If the allegations which have been made against him are false, this Code
provides the provisions for filing a discharge application. When the evidence given before the
Court is not sufficient to satisfy the offence and in the absence of any prima facie case against
him, he is entitled to be discharged. The regular procedure of law is that the police after
completing its investigation files the final charge sheet under Section 173 of the code. Thereafter
trial against the accused begins by the concerned Court. However, Section 239 and 227 of CrPC,
provide provisions that before the charges are framed against an Accused person, he can be
discharged.

Section 227 of the Code defines that if the judge considers that there is no sufficient ground for
proceeding against the accused, upon hearing the submissions of the prosecution and the accused
in the behalf and consideration of the record of the case along with the documents submitted
therewith, he shall discharge the accused and record his reasons also for so doing. Only after
considering allegations in the charge-sheet and the relevant case-law, the Discharge of an
accused can be ordered. The magistrate should ensure that there is no sufficient ground for
proceeding means that no prudent person can conclude that there are grounds or even a single
ground to sustain the charge against the accused. If the Sessions Judge is certain that the trial
would only be a futile exercise or complete waste of time, he has the authority to discharge the
accused.
For the purpose of deciding whether the grounds are sufficient for proceeding against an
accused, the Court determines the question whether the material on record, if it is un-rebutted, is
sufficient to make the conviction possible. It postulates the exercise of the judicial mind to the
facts of the case to decide whether a case has been made out by the prosecution for trial. It is
only through the facts of each case through which the judge can determine if it is a prima-facie
case and in this regard, it is neither possible nor desirable to formulate rules of universal
application. However, if both of the views are possible and the Judge is convinced that the
evidence presented before him gives rise to suspicion but not grave suspicion, he can discharge
the accused. At this stage, he does not need to bother whether the trial will lead in conviction or
not.

In Satish Mehra v. Delhi Administration4 the Supreme Court held that if the accused produces
any convincing material at the stage framing of charge which might drastically affect the very
sustainability of the case, it is unfair to suggest that no such material should be considered into
by the court at that stage. It was held that the main motive of granting a chance to the accused of
making submissions as envisaged in Section 227 of the CrPC, is to assist the court to determine
whether it is required to proceed to conduct the trial. At the stage observed under Section 227,
the Judge has to merely examine the evidence in order to determine whether or not the grounds
are sufficient for proceeding against the accused. The nature of the evidence recorded by the
police or the documents produced in which prima facie reveals that there is a suspicious situation
against the accused so as to frame a charge against him before the court would be taken into
account in order to find out the sufficiency of ground.5

In P Viswanathan v. A.K Burman6, the Hon’ble Calcutta High Court held that the discharge of
an accused under Section 227 is not tantamount to the acquittal of an accused. Under this
Section, the accused is released on the ground of non-availability of the materials collected by
the office during the investigation, the Court does not absolve the accused from all the charges at
that stage. The discharge may be due to inept inquiry and investigation. The discharged person
can again be charged subsequently after proper investigation and collection of relevant materials.
The basic intention of the legislature is to prevent one’s subjection to the judicial process without
any foundation.

In the case of Sanjay Gandhi v. Union of India7, it was held that there is no such provision that
permits the Magistrate to discharge the accused. Discharge order can be given only by a trial
court and in respect of the offences exclusively triable by a court of session, the court of the
Judicial Magistrate is not the trial Court.

4
Satish Mehra v. Delhi Administration, (1996) 9 SCC 766
5
Union of India v. Prafulla Kumar Samal & Another, (1979) 3 SCC 4
6
P Viswanathan Vs, A.K Burman, 2003 CriLJ 949
7
Sanjay Gandhi v. Union of India reported in AIR 1978 SC 514
In the case of State of Orissa v. Debendra Nath Padhi8, A three-Judge Bench of Hon’ble
Supreme Court held that Section 227 was enacted in the Code with the purpose of saving the
accused from unnecessary harassment. It is assessed to forbid harassment of accused persons
when the gathered evidential materials fall short of minimum legal requirements after
investigation. The Legal Maxim ‘Let a hundred guilty be acquitted, but one innocent should not
be convicted’ is the guiding principle behind rules of the procedure and evidence guiding and
inspiring our courts. When any law relating to procedure and evidence requires some sort of
interpretation, the interpretation is made usually in favour of the accused, which is, upholding the
presumption of innocence. To conclude, if any warrant, case allegations are made against the
accused but there is no sufficient evidence that could end the accused in conviction, it is the duty
of the Court to discharge the accused.

8
State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568