The Delhi High Court has held that Section 358 of the Bhartiya Nagarika Suraksha Sanhita (BNSS) does not empower a Magistrate to take re-cognisance of an offence. Rather, this provision can only be invoked during the course of an inquiry or trial, not at the cognizance stage. Justice Amit Mahajan delivered the ruling in a petition in which in-laws had challenged an order passed by a Magistrate who, following a protest petition, issued summons to them after earlier taking cognizance of a cruelty FIR only against the husband.
The facts of the case are that a complainant had filed a cruelty FIR naming the husband. The Magistrate initially took cognizance only against the husband and issued notice. Subsequently, a protest petition was filed seeking cognizance against the in-laws, and on that basis the Magistrate issued summons to them. The in-laws challenged that summons order. The High Court scrutinized whether the Magistrate was legally empowered under Section 358 BNSS to issue summons to persons not earlier charge-sheeted after cognizance had already been taken.
The Court explained that “cognizance” is something that once taken, cannot be “re-taken” simply by virtue of a protest petition. It held that cognizance can only be taken once, and the attempt to take cognizance again via the protest petition effectively amounts to reviewing or reopening a prior order of cognizance, which is not permissible. The High Court relied on prior Supreme Court authority, including Ramakant Singh & Ors. v. State of Jharkhand & Ors. (2023), which held that after a Magistrate has taken cognizance of a chargesheet, the magistrate does not have the power to entertain a protest petition to take cognizance of new persons not named in the charge sheet.
The High Court clarified the meaning of Section 358 BNSS: it empowers the court to issue summons to any person not originally accused but who appears to be guilty of the offence based on the evidence during inquiry or trial. Thus, that section does not authorize summoning such persons at the cognizance stage. The court noted that in the case at hand, no supplementary chargesheet had been filed based on new material, so there was no basis for including the in-laws as accused at the stage of issue of summons under Section 358, before trial.
The court also considered the complainant’s argument that when the Magistrate first took up the matter, only a “notice” was issued to the accused, not a “summons,” and that this showed no formal cognizance had been taken. The court rejected this claim, holding that even without using the word “cognizance,” the act of issuing a notice after perusal of the police report and taking note of it amounts to taking cognizance. It is not necessary to have a speaking order or explicit mention of the word “cognizance” as a formal requirement to show that cognizance has in fact been taken.
Because the Magistrate had already taken cognizance in respect of the husband, and because too much time had elapsed between notice to the original accused and the protest petition, the High Court held that the Magistrate could not lawfully act on the protest petition to issue summons to the in-laws. To allow that would amount to reviewing its own prior order of cognizance, which is impermissible.
Accordingly, the Delhi High Court allowed the petition filed by the in-laws and set aside the impugned order which had issued summons under Section 358 BNSS against them.
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