The article is written by Kashish Grover, from Symbiosis Law School, Noida.
The Indian Legal System works on three types of law namely:
- Substantive Law
- Procedural Law
- Evidentiary Law
The Procedural Law that is well known as Code of Criminal Procedure, 1973 is the one that deals with the process of how a person can approach the authorities to get justice. For example: types of offences, procedure of arrest of offender for different types of offences, procedure of investigation, the procedure of bail provision etc.
Offence, as defined by Merriam Webster Law Dictionary, is something that outrages moral or physical senses. It refers to an illegal act or crime that is punishable in nature and against which complaint can be registered by police or magistrate.
Offences can be categorized into various types, but we will particularly focus on two:
- Cognizable Offences
- Non-cognizable Offences
Under Cr.P.C., Cognizable Offence is discussed under Section 154. Section 2(c) of Cr.P.C. defines it to be an offence in which the police officer can arrest the convict without a warrant and can start investigation without the due permission of the court. These are the offences that are usually very serious and generally heinous in nature. For example: Rape, murder, kidnapping, dowry death etc. All cognizable offences are non-bailable due to their serious and heinous nature.
Section 2(1) of Cr.P.C. defines Non-cognizable Offence. It refers to it as an offence for which a police officer has no authority to arrest without a warrant. These are the offences that are not serious or usually petty in nature. For example: assault, cheating, forgery, defamation etc. Non-cognizable offences are usually bailable because of their non serious nature.
Provisions under CrPC
Information in cognizable cases.
- Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
- A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
- Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
With reference to the particular section, an officer can register an F.I.R. and take cognizance of and arrest a suspect without seeking court’s prior approval. If she/he has a “reason to believe” that a person has committed the offence and is satisfied that arrest is a necessary step.
Then within 24 hours of arrest, the officer must get the detention ratified by the concerned judicial magistrate. Police officer also has a chance to conduct preliminary investigation before registering the F.I.R. to crosscheck the facts but the liability lies totally upon him for the same. This is because if the Police Officer doesn’t register an F.I.R. at the moment the information is received, and there is any mishappening because he was not sure of the serious offence like murder taking place and someone loses his life will be a careless mistake.
Procedure to be followed in cases of cognizable offences
Information Received🡪 Entered in General Diary🡪 Registration of F.I.R.🡪 Arrest of accused🡪 Remand🡪 Investigation under Section 156🡪 Charge-sheet under Section 173🡪 Inquiry🡪 Trial🡪 Judgment
Each of this process relating to the Cognizable Offences has been described below.
F.I.R. means the information, given to the police that person known or unknown has committed an offence which is listed as cognizable offence in Schedule 1 of Cr.P.C. It has to be signed by the informant. A copy of F.I.R. has to be given to the informant and the second copy of F.I.R. has to be sent to the magistrate for his perusal and record. This is regarded as the basis or foundation of the prosecution case. F.I.R. is said to be the first, untainted, unguided version of the case and generally is never false.
Report to the Magistrate
When a cognizable offence has been reported, the officer-in-charge makes the reports to the concerned judicial magistrate and appoints himself or a subordinate officer for investigation.
In cognizable offence, the investigation begins as soon as the information is received and recorded. All formalities of the order of the magistrate and warrants arrive later. The Police officer assigns proceeds to spot, arrest the suspect, ascertain facts and circumstances of the case.
For heinous offences, no time limit has been prescribed specifically by Section 468 of Cr.P.C. for completion of investigation but one can always approach the Supreme Court for unreasonable delay under Article 21 that is Right to Freedom as provided by the Indian Constitution.
Search and Production of Documents
If the Police believes that some search has to be made during investigation, he is authorized to do so for cognizable offence. He can also issue or order a person to produce any documents that are relevant for the case.
Arrest refers to a physical restraint put on a person as a result of accusation made against him for an offence that is cognizable in nature. Three elements are present for the arrest of a person:
- Intention to arrest under authority;
- Detention in legal manner; and
- Arrested person understands why he is arrested and knows his rights.
Arrest in cognizable offences does not require a warrant. It can be done on the making of accusation that is so dangerous or serious in nature that it cannot be avoided. Within 24 hours of the arrest, the Police has to acquire an arrest warrant for the person in custody. Within 24 hours, the Police has all the time to investigate the offence and question the person.
When Police arrests a person in case if cognizable offence and investigation cannot be completed within 24 hours, then they make a written application to the magistrate and request him to keep the accused in police custody for further period otherwise the accused has to be released. The request of remand can be granted for not more than 14 days under the police custody.
Statement of Witnesses
During the investigation, the persons who are included in the case basically the witnesses, as well as the accused, are questioned and their statements of their side of the event are recorded.
In case of rape and molestation or any such crime where medical examination is necessary, it’s the duty of the police officer to get it conducted within 24 hours of the offence being reported.
When a Police officer concludes an investigation of a cognizable offence, he sends a report to the magistrate of that investigation in which the I.O. finds the material to proceed against the accused. This report includes F.I.R., statements of witnesses recorded by police, names of parties, brief facts and information gathered by the I.O. during investigation etc.
At the stage of inquiry, the judge doesn’t give a decision. He/she reaches a preliminary finding and leaves it to the parties to make further action like plead guilty etc. In this stage, witnesses are generally required to come to the court, take an oath and then give evidence in respect of what they have seen and stated before the police during the investigation.
The hallmark of trial is that every witness who gives evidence will now give the same evidence in court binded by an oath. Trial has several categories:
- Trial of warrant case by a magistrate;
- Trial of summons case by a magistrate;
- Trial started on cognizance taken on a police report; and
- Sessions Trial.
In cognizable offences, the trial is usually under Warrant Case or Sessions Case as they deal with more serious and heinous offences.
The judgment contains the points for determination, the decision on those points and reasons for the same by considering the examination, cross-examination of accused and the witnesses.
In Cognizable cases, the punishment period is usually more than 3 years going upto life imprisonment or death penalty as they are serious and heinous in nature.
- The police don’t depend on the precedents of Supreme Court that modifies definitions of offences to bring them in line with the Constitution. They follow the old line of rules and laws and the outdated ways that are being followed to take the crime out.
- For instance, the definition of sedition was read down in Kedarnath Singh v. Bihar (1962) to encompass only speech or conduct that can “incite violence” or “involves the intention or tendency to create disorder”. According to the supreme court, an officer examining a sedition FIR needs to accurately understand and apply Kedarnath Singh, before taking cognisance of the offence. But inspite of this, there has been increasing F.I.R. under cognizable offences like sedition or act of promoting enmity between religious groups.
- In the case of cognizable offence, there are no restrictions on the powers of the police that deters the arrests. There are many problems and issues that come with it:
- There can be errors in determining whether the suspect’s conduct will result in or cause harm as a downstream effect.
- This might cause hatred, contempt or excite disaffection against the government or promote enmity between religious groups.
- An arrest based on such an error would unconstitutionally curtail not only the arrested person’s freedom to engage in speech and conduct (Article 19) but also the liberty against arbitrary arrest (Article 22).
- Multiple judgments of the supreme court such as Joginder Kumar (1994), DK Basu (1997) as well as Law Commission Reports (154th, 177th) critiqued the wide powers of arrest for cognisable offences.
- This led to the 2009 amendment which restricted the power to arrest, to persons against whom “a reasonable complaint” or “reasonable suspicion” exists, or “credible information” is received, of having “committed a cognisable offence.”
- However, the term reasonable is very ambiguous and may be subjected to arbitrariness.
- Therefore, the CrPC neither deters arbitrary arrests nor comprises incentives for carrying out arrests consistent with the individual liberty and autonomy of individuals.
- India must adopt an inquisitorial system of investigation practised in countries such as Germany and France, where a judicial magistrate supervises the investigation.
- Separation of investigation wing from Law and Order.
- As of 2017, the judge-population ratio in India is one judge per 19.66 per million people, against 50 judges per million population in many parts of the world. therefore, the government needs to fill vacant judicial posts.
- Establishing All India Judicial services will be a step in the right direction.
- The higher courts, including the Supreme Court, should have a separate criminal division consisting of judges who have specialised in criminal law.
- According to the Malimath Committee, instead of the current classification of offences as cognisable and non-cognisable offences needs to be classified as social welfare code, correctional code, criminal code, and economic and other offences code.
- It also recommended providing for a Presidential Commission for a periodical review of the functioning of the Criminal Justice System.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: