Introduction

A victim of crime can set the Criminal Justice System into motion either by registering a First Information Report before the jurisdictional Police Station or by filing a complaint case before a Judicial Magistrate.

In case an FIR has been registered then the police or the investigating agency files a report to the Magistrate empowered to take cognizance of the offence.

In a complaint case, the Magistrate either himself or by any other person enquires about the offence, whereas, in the case of FIR the concerned Police/ Investigating Agency files final report/ charge-sheet.

In any event, the Magistrate needs to take cognizance of any offence –

• Upon receiving a complaint of fact which constitutes such offence.
• Upon a police report of such fact.
• Upon information received from any person other than the police officer or upon his own knowledge, that such offence has been committed.

It has been held by Hon’ble High Courts and Supreme Court of India that a Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the fact emerging from the investigation and take cognizance of the case.  It indicates the point where a Court or Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by an offender.

Summoning of Accused

Once the cognizance of an offence is taken by the Magistrate or Sessions Judge (under special enactment) then depending upon the seriousness of the offence the Magistrate issues either summons or bailable warrant to the accused, fixing a date thereof.  On such date so fixed, if the accused is on bail then the accused person need not to worry.  However, in case the accused person was not arrested by the police then under such circumstances the accused person apprehends judicial custody and the established or the more followed principle is appearing and filing for bail before the summoning Magistrate. 

However, the Hon’ble Allahabad High Court in Adil vs. State of U.P. has held that even after filing of charge sheet and even when cognizance whereof is taken by the Magistrate, an anticipatory bail application can be filed by an accused person, thereby requesting for bail.  Once the accused person gets anticipatory bail, then he can freely and without apprehension of judicial custody can appear before the summoning Magistrate and face the trial without any apprehension of going to jail.  At the same time, besides filing of the anticipatory bail application, a parallel proceeding of quashing of charge sheet can also be initiated by the accused person whereby challenging the investigation and the cognizance taking order of the Magistrate.

Depending on the facts, circumstances and the merits of the case the accused may anticipate result in the anticipatory bail application and application for quashing of the charge sheet and cognizance taking order of the Magistrate.

Remedies Available

Hence, if an accused is being summoned by Court against any offence and he is not on bail, then he may take the following two steps:-

• File an anticipatory bail application and pray for a grant of bail from the Court of Sessions.
• Challenge the cognizance-taking order and the charge sheet before the High Court for quashing of same.