Recently, the Delhi High Court held that a Magistrate cannot take re-cognizance of an offence after already having taken cognizance on a chargesheet. The Court was dealing with petitions filed by elderly parents-in-law summoned in a dowry harassment case despite no incriminating material against them. Importantly, the Court observed that “cognizance can only be taken once” and subsequent cognizance on a protest petition amounts to impermissible review.
Brief Facts:
The case arose from an FIR registered against the petitioners and their son under Sections 498A, 406, and 34 of the IPC on a complaint by the daughter-in-law. The petitioners, elderly parents residing in Varanasi, were initially placed in Column 12 of the chargesheet as no evidence was found against them. Only their son, the complainant’s husband, was chargesheeted.
The Magistrate issued notice to the son, effectively taking cognizance of the offence. However, almost a year later, the complainant filed a protest petition alleging unfair investigation and seeking cognizance against the petitioners as well. Acting on this, the Magistrate issued summons to the petitioners, which was upheld by the Sessions Court. Aggrieved, the petitioners approached the High Court.
Contentions of the Petitioner:
The counsel for the petitioners argued that the protest petition was filed belatedly and was essentially a request for re-cognizance, which the law does not permit. It was contended that the Magistrate had already taken cognizance on 21.06.2021 by issuing notice on the chargesheet, and the subsequent order summoning the petitioners was legally unsustainable. Reliance was placed on the Supreme Court’s ruling in Ramakant Singh v. State of Jharkhand, where it was held that a Magistrate cannot modify or review an earlier order of cognizance.
Contentions of the Respondent:
On the other hand, the complainant’s counsel argued that sufficient material existed to summon the petitioners and placed reliance on precedents including Dharam Pal v. State of Haryana and SWIL Ltd. v. State of Delhi to assert that the Magistrate was competent to summon even those not charge-sheeted.
Observations of the Court:
The Court noted that cognizance had already been taken by the predecessor Magistrate in 2021 when notice was issued to the son, and the subsequent summoning of the petitioners on a protest petition amounted to taking re-cognizance. Citing Ramakant Singh, the Bench reiterated, “It is settled law that cognizance can only be taken once and 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 Court further observed that if the Magistrate intended to treat the protest petition as a complaint, the proper procedure under Section 200 CrPC ought to have been followed. Importantly, the Court held that Section 358 of the Bharatiya Nagarik Suraksha Sanhita (earlier Section 319 CrPC), which empowers summoning of additional accused during trial, was not applicable at this stage as neither inquiry nor trial had commenced.
The Court also expressed concern that reliance was placed on emails not forming part of the original FIR or chargesheet, which unduly influenced the lower Courts. It stressed that once cognizance is taken, any infirmity must be challenged directly, and it cannot be cured by entertaining a belated protest petition.
The decision of the Court:
Allowing the petitions, the High Court set aside the orders dated 10.10.2023 and 19.11.2024, which had summoned the petitioners. However, the Court clarified that the complainant is free to pursue appropriate remedies in accordance with law against the original order on cognizance.
Case Title: Mrs. Amrita Jain vs. State of Nct, Delhi & Anr
Case No.: CRL.M.C. 80/2025 & CRL.M.A. 499/2025
Coram: Justice Amit Mahajan
Advocate for Petitioner: Adv. Arunav Choudhary (Senior Advocate), Seraj Ahmad, Mobin Akhtar
Advocate for Respondent: Adv. Sunil Kumar Gautam (APP), Peeyoosh Kalra, Yashwant Singh Baghel
