Right of Accused at the Time of Cognizance
Anurag Tripathi* and Abhishek Chanda**
Abstract
The very essence of the criminal justice system is to protect the interest of the accused and provide for a fair trial as he is pitted against the might of the state. Some of the rights of the accused with time have got diluted and some are recommended to be done away with as proposed by the Malimath Committee Report. The reasoning given is the lower rate of criminalization. But, the very core of the existence of criminal justice system is not to convict but provide a platform for proper representation.
This leads to the fact that although the accused is given a chance for fair trial post cognizance, there is no opportunity of him being heard at the time of cognizance. Under Sec. 173(2) of Cr.P.C, while taking cognizance, the informant is given an opportunity of being heard when the police report is made however no such opportunity is given to the accused. The paper proposes the idea of granting an opportunity to the accused to be heard at the time of cognizance by the magistrate. Further, the paper will also highlight the need as well as the advantages of such approach to the society at large.
Keywords- Violation of Natural Justice, Cognizance, Opportunity of hearing
Introduction
"Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf".[1] Lord Denning M.R.
Principles of Natural Justice have played an eminent role in the criminal justice system. In number of cases, the courts were faced only to decide when opportunity of being heard is available to the accused and when not. Opportunity of being heard is one of the essential principles of natural justice, which is to be followed by the court in every case whether it is civil or criminal in nature.
In Smt. Maneka Gandhi v. UOI,[2] the Hon’ble Apex Court has observed that the principle of audi alteram partem makes it mandatory that no one shall be judged unheard, is part of the rules of natural justice, which is a great humanizing principle anticipated to invest law with fairness and to secure justice.
Undoubtedly it is true that the court, in Smt. Maneka Gandhi’s Case, has unlocked a new view in the area of personal liberty as enshrined under Art. 21 of the Constitution and emphasized the audi alteram partem rule.[3]
In number of cases, it have been contended that the accused must be given an opportunity of being heard at the time of taking cognizance of police report. This contention was raised only after when the court held that it is the duty of the court to provide an opportunity of being heard to the informant at the time of taking cognizance of the police report.
Hence, there is moot question which is yet to be answered whether the accused should be provided an opportunity of being heard at the time of taking cognizance of police report or not? And if it is provided then would it not result into trail before trail which is neither provided in the statute nor in the school of law.
Need of Cognizance
The expression "taking cognizance of an offence” has not been defined anywhere in the Code. However, from the scheme of the code, it is clear that a case can be said to be instituted in the court only after the magistrate takes cognizance of offence.[4] The word “cognizance” means become aware of and when used with reference to a Court or Judge, to take notice of judicially.[5] In case of Nirmaljit Singh Hoon v. The State of West Bengal and Anr,[6] the Hon’ble Apex court considered that under Section 190 of the code, the object of examination at the time of taking cognizance of the report is to make clear whether there is a prima facie case against the accused, and to avoid the issue of process in those cases where it is either false or vexatious or projected only to harass such a person. It includes the intention of initiating judicial proceedings against the offender or taking steps to see whether there is any basis for initiating judicial proceedings. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence.[7] Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the alleged commission of an offence.[8]
In the process of the cognizance, the application of judicial mind of the magistrate is of utmost necessity otherwise it could not be said that the cognizance is being taken. The object is to ensure the safety of a citizen against the vagaries of the police. A Magistrate may take cognizance if he is of the opinion that there is sufficient ground for proceeding. A very wide discretion is vested with the magistrate, which is to be used with care and caution.[9]
If we consider the exercise of discretion at the time cognizance which is supposed to be used with care and caution as per the rule of law and pronouncement of the court itself seems not to be followed by the Magistrate because they have taken cognizance of the matter without applying their mind and application of judicial mind is far from to be applied which has resulted into suffering of accused and the merger of civil disputes with criminal charges. It has vanished the need for which the process of cognizance had been evolved and incorporated in the code. The Magistrate has also taken the cognizance of the matter even if there is no case and it have been found in number of cases. For example, in the case of State of UP v. RK Srivastava,[10] the accused were acquitted on the ground that the alleged offences made either in the FIR or in the police report do not constitute any offence and as the criminal proceedings were started on the basis of FIR which amounts to abuse of the process of the court. In the present case, the proceedings were started only after the cognizance of offences taken by the Magistrate then the question which arose as to what he did. His duty is to find out whether there is prima facie on the basis of the alleged offence and again he failed to take the judicial notice of the matter and to decide as per the rule of law, justice and equity. This is not only the case but a plethora of cases where the cognizance have been taken and criminal proceedings started on its basis but ultimately it have been found that there is no prima facie case.
There have been trend to refer civil disputes for police investigation or take cognizance by themselves with ulterior motive and oblique the demand of bank, financial institution, etc. It imputes criminal flavour to the civil dispute which is not only inappropriate but provokes their intention by helping one party to intimidate the other party. The basic principle is that if a matter is found to be purely civil in nature, the same can’t be taken on a criminal character because both the disputes are mutually exclusive. The very reason for trespassing the area of the criminal law remedy is that civil law remedies are time consuming and by the order for police investigation they would be able to upon the borrower through police itself by swallowing the fear of arrest or being subjected to humiliation at the hands of police and ultimately, with affluence, they could collect the principle amount plus excessive rate of interest. However, such figures of principle and interest rate are not mentioned in the complaint.[11]
However, it is unfortunate to mention that a Magistrate, who is being constantly guided by the Hon’ble Court to exercise great caution, have unexpectedly failed in following to such guidance which have resulted into immersion of civil dispute with criminal charges. It is enormously increasing every day which is reflected in the statistics furnished before the Hon’ble Court. Hundreds of such complaints are being considered by some of Magistrate and cognizance is also taken on daily basis. Suffice it to say that such cognizance shall not be treated as valid in the eyes of law because it is taken on the mere request of banker, financial institution, etc. with an unwrapped evil motive and in collusion and conspiracy with them.[12] Therefore, the stage of cognizance is point where the Magistrate has to deliberate upon the issue whether the complaint includes a matter of civil nature or not and has to take proper precautions to prevent a civil dispute under the colour of criminal charge goes through the entire process of investigation leading to the harassment of the accused and his family. This will also help in reducing waste of public money and precious time of the judiciary. However, in the present time, it is quite evident that intention of the drafters to allow the Magistrate to apply the judicial mind on the alleged offences has become nullified.
Cognizance of Police Report And Opportunity of Being Heard To The Accused
A bare reading of Section173(2) of Cr.P.C. shows that as soon as the investigation is completed, the officer in charge of the police station, it is mandatory to forward the police report to the Magistrate empowered to take cognizance of the offence stating inter alia whether an offence appears to have been committed and if so, by whom.[13]
The Hon’ble Apex Court stressed that while considering the police report made under Section 173(2), the informant must be given an opportunity of being heard so that he can make his submission to convince the Magistrate to take cognizance of the offence and issue process. In cases where the Magistrate chooses not to take cognizance of the police report and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, even though the informant must be provided an opportunity of being heard.[14]
As per Bhagwant Singh's case, the Magistrate is bound to give the notice to the informant and provide an opportunity of being heard at the time of taking cognizance of the police report. It was noted as follows:-
"....the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report..."
Suffice it to say that the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when it is to be considered, he cannot be blamed, even if protest petition in reply to the notice issued by the police has been filed belatedly. But, as indicated in Bhagwant Singh's Case, the right is conferred on the informant and none else.[15]
It has been further stated by the Hon’ble court that if the Magistrate is of the opinion that there is no sufficient ground to take cognizance of the matter, the informant would be prejudicially affected because the FIR lodged by him would have failed its purpose. It must be presumed that the informant is equally interested in seeing that the Magistrate takes the cognizance and issue process, and he must be given an opportunity of being heard so that can make his submission to persuade the Magistrate to take cognizance.[16]
However with due respect to their Lordships, the pronouncement does not make a sound because they have failed to explain as to how merely the informant would be prejudicially affected and not the accused if the Magistrate takes cognizance of the alleged offences. The court has stated that the informant would be prejudicially affected because the purpose of the FIR would be defeated. It is not expected from the court to fulfill the purpose of FIR, rather than providing justice, which may be projected merely to harass the accused. The court is not required to make its steps as per public conscience.
Therefore, there is need to consider the question why the accused is not provided a prior notice and opportunity of being heard at the time of taking cognizance of police report under Section 173(2) of Cr.P.C., and whether none else includes accused or not? Can the accused be heard at the time of taking cognizance of police report? This is not question of fact but it is question of law, which have been decided by the courts in different ways and has been held that the accused can neither be given a prior notice nor be heard at the time of taking cognizance because it is not provided in the procedure.
In S. Nagaraj v State of Karnataka,[17] an application was filed by the State for clarification of the order passed earlier. In Art. 141 of the Constitution, Sahai J. speaking for himself and for Pandian J. observed:
“Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in administrative law as in public law. Even the law bends before justice.”
Referring to the judgement of Raja Prithwi Chand Lall Choudhry case,[18] the court further observed:
“Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.”
In case of Bhagwant Singh v. Commissioner of Police, the court goes on to state that even if the injured person is not entitled to the Magistrate, he can appear before the Magistrate and make his submission when the report is being considered. Such person has locus to appear before the Magistrate at the time of consideration of report and the Magistrate is bound to hear him. Although the Magistrate is not bound to issue notice to the injured person but it may issue notice if he thinks it fit.[19]
The court has already broken the barriers of the procedure in an attempt to render complete justice and held that even the injured person may be provided notice because it would enable him to convince the Magistrate. However, their Lordships forgot to look at the accused that is not only locus to the case but ultimate sufferer and would turn as a victim if it is subsequently found that the whole exercise was futile and the object was only to harass him. If a chance is being provided to the injured person/ relatives of deceased to convince, at the same time in the name of justice it would be appropriate to provide a chance to the accused to convince the Magistrate that prima facie there is no case.