Narayan Shukla, J. - (1.) - Heard Mr. Virendra Bhatia, learned Senior Advocate assisted by Mr. Ashwani Kumar Singh, learned Counsel for the petitioners as well as Mr. R.P. Shukla, learned Additional Government Advocate. The petitioners have challenged the order dated 25th of June, 2008, passed by the I Judicial Magistrate, Faizabad in a case arising out of Case Crime No. 973 of 2007, under sections 147, 148, 149, 363, 364, 307, 506 and 7 Criminal Law Amendment Act, Police Station Raunahi, district Faizabad, on the ground that by the order impugned the Magistrate has summoned the petitioners for trial under sections 147, 148, 149, 307, 363, 364, 366, 506, I.P.C. and 7 Criminal Law Amendment Act, Police Station Raunahi, district Faizabad without taking cognizance of offence, which is not permissible under the law. In support of his contentions the learned Senior Advocate drew the attention of this Court towards sections 190 and 204 of the Code of Criminal Procedure, which are reproduced hereunder : "190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence : (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." 204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be : (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the pro visions of section 87."
(2.) In the light of the aforesaid provisions he submits that first under section 190 of the Code of Criminal Procedure, the learned Magistrate has to take cognizance of an offence and after taking cognizance of an offence, if he is under opinion that there is sufficient ground for proceeding, he can issue summons or warrant under section 204, but before taking cognizance of an offence he cannot proceed to issue summons or warrant as the case may be. He further invited the attention of this Court towards the order impugned, which according to him does not speak so, rather he submits that without taking cognizance directly he has issued summons which is an error of law, therefore, under the erroneous order the petitioners cannot be compelled to appear before the learned Magistrate. On the other hand the learned Additional Government Advocate submitted that even no provision of the Criminal Procedure Code requires any specific observation of the Court for taking cognizance, but once the summons have been issued, that means that the Magistrate has taken cognizance of an offence. In support of his contentions he placed the meaning of cognizance defined in the different dictionaries, which are as under : In Black's Law Dictionary the word "cognizance" has been defined as under : "Cognizance/ko(g)nezens/. Jurisdiction, or the exercise of jurisdiction, or power to try and determine causes ; judicial examination of a matter, or power and authority to make it. Judicial notice or knowledge the judicial hearing of a cause acknowledgement ; confession ; recognition. In Oxford Dictionary the word "cognizance" has been defined as under : "Cognizance/ko (g)niz (e)ns/(also cognisance)* n.l. Formal knowledge or awareness. - Law the action of taking judicial notice. 2. Heraldry a distinctive device or mark, especially as formerly worn by retainers of a noble house. PHRASES take cognizance of formal attend to take account of." In the New Lexicon Webster's Dictionary of the English Language the word "cognizance" has been defined as under : "cognizance (kognizens, konizens) n. the range of mental observation or awareness/the fact of being aware, knowledge/(law) the power given to a Court to deal with a given matter, jurisdiction/(heraldry) a distinguishing device beyond one's cognizance not one's concern, outside one's terms of reference to have cognizance of to take into one's reckoning cognizant adj.cognize (kognaiz) pres. Part. Cog.niz.ing past and past part, cog.nized v.t. To make (something) an object of cognition (O.F. connoissance, knowledge)"
(3.) He also cited a decision of the Hon'ble Supreme Court rendered in the case of S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and others, 2008 (61) ACC 371 (SC) : 2008 (64) AIC 50 (SC) , in which the Hon'ble Supreme Court was called to decide the correctness or otherwise of the proposition of law by the High Court of Judicature at Bombay whether issuance of process in a criminal case is one and the same thing or can be equated with taking cognizance by a Criminal Court? And if the period of initiation of criminal proceedings should be quashed as barred by limitation? To appreciate the controversy raised in the appeal the Hon'ble Supreme Court discussed the expression cognizance in the following manner : "19. The expression cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of and when used with reference to a Court or a Judge, it connotes "to take notice of judicially". It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. 20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognisance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." Again in the case of Narayandas Bhagwandas Madhavdas v. State of W.B., AIR 1959 SC 1118 , the Hon'ble Supreme Court has observed that it is only when a Magistrate applies his mind for proceeding under section 200 and subsequent sections of Chapter XV or under section 204 of Chapter XVI of the Code that it can be positively stated that he had applied his mind and thereby had taken cognizance of an offence.;