The Delhi High Court has held that Magistrate is not empowered under Section-358 Bharatiya Nyaya Sanhita to take re-cognizance upon filing of a Protest Petition as the same would amount to review of the previous order.

The Court was considering a Petition against an order whereby Revision Petition filed against an order whereby the Magistrate had taken cognizance of the offences under Sections 498A/406/34 of the Indian Penal Code, 1860 against the Petitioners and their son, and issued summons to them, was dismissed.

The single bench of Justice Amit Mahajan observed, "It is settled law that cognizance can only be taken once and the aforesaid judgment makes it clear that it is not open to the learned Magistrate to take re-cognizance upon filing of protest petition as the same would amount to review of the prior order."

The Petitioner was represented by Senior Advocate Arunav Choudhary while the Respondent was represented by Additional Public Prosecutor Sunil Kumar Gautam.

Facts of the Case

The Petitioners are the mother-in-law and father-in-law of the Complainant. After investigation, chargesheet was filed only against the son of the Petitioners and the Petitioners were placed in Column 12. It was mentioned in the chargesheet that no evidence or incriminating material was found against the Petitioners and it did not appear that they were instigating their son to treat the Complainant with cruelty. The matter was taken up by the learned Metropolitan Magistrate and Notice was issued to the Accused. Subsequently, Protest Petition was filed on behalf of the Complainant alleging that the investigation was unfair and, inter alia, seeking that cognizance may be taken under Section 190(1)(c) of the Code of Criminal Procedure, 1973. The Magistrate found that merely notice was issued by way of previous order and no formal order was passed for taking cognizance.

Counsel for the Petitioner submitted that the Predecessor Magistrate had taken cognizance after going through the complete charge sheet and no cognizance was taken against the Petitioners as no material evidence was found against them. He submitted that the Protest Petition was filed belatedly essentially seeking re-cognizance which is impermissible.

Reasoning By Court

The Court at the outset noted that it is well settled that taking cognizance does not involve any formal action and the Magistrate is not even required to pass a speaking order at the stage of taking cognizance and it is taken when the Magistrate first takes judicial notice of an offence.

"In the present case, in the opinion of this Court, merely because the predecessor Magistrate did not explicitly use the word “cognizance”, the same cannot be deemed to mean that no cognizance was taken at all especially since notice was issued. When a Magistrate takes cognizance of an offence upon a police report, he does so of the offence, and the order of Court issuing notice signifies that the Court had perused the report and taken note of the same. While in a complaint case it is necessary to put a party to notice before taking cognizance, the present case stems from a police report and there was no cause for the Court to issue notice to the accused prior to cognizance.", the Court observed.

It concluded that as the Magistrate cannot review its own order, it could not have acted upon the protest petition in such circumstances, except by treating the Petition as a Complaint which has not been done in the present case.

"Undoubtedly, Section 358 of the BNSS empowers the Court to proceed against persons not named as accused in the chargesheet even after taking cognizance, however, the same cannot be done in the manner as employed by the learned Magistrate herein after cognizance had already been taken on application of mind to the chargesheet. It is important to note that Section 358 of the BNSS which empowers the Court to issue summons to any person who is not an accused, but appears to be guilty of an offence from the evidence, only comes into play in the course of any inquiry into or trial of an offence", the Court observed.

The Petition was accordingly allowed.

Cause Title: Mrs. Amrita Jain vs. State of NCT, Delhi & Anr. (2025:DHC:7592)

Appearances:

Petitioners- Senior Advocate Arunav Choudhary, Advocate Seraj Ahmad, Advocate Mobin Akhtar

Respondents- Additional Public Prosecutor Sunil Kumar Gautam, Advocate Peeyoosh Kalra, Advocate Yashwant Singh Baghel

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Delhi High CourtJustice Amit Mahajan

Sheetal Joon