The article is written by Kashish Grover and Monesh Mehndiratta, law student at Graphic Era Hill University, Dehradun. This article explains the meaning of cognizable offence and what offences are covered therein. It further gives the difference between cognizable and non-cognizable offences along with the investigation procedure followed in cases of cognizable offence.
This article has been published by Sneha Mahawar.
The Indian Legal System works on three types of law namely:
- Substantive Law
- Procedural Law
- Evidentiary Law
The Procedural Law which is well known as the 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, the procedure of arrest of offenders for different types of offences, the 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 a complaint can be registered by police or magistrate.
‘Offence’, you must have heard this word somewhere or other. We usually use it to mean that a crime has been committed. Do you know that offences given in the Indian Penal Code, 1860 (IPC) are classified as cognizable and non-cognizable offences?
While reading your Bare Act, law students come across a particular offence that is cognizable in nature, tried by a magistrate, and so on. Have you thought about what this means and how various offences are classified?
Well, all the answers are discussed in this article. You will get all your answers as you read this article. So let’s begin the journey to understand the concept of cognizable offences.
Collins dictionary defines offence as “a crime in which a person breaks a particular law and then requires to be punished by a particular punishment.” All the offences given under the IPC are not the same, and so is the procedure of investigation and trial. On the basis of the nature, gravity, and seriousness of the offence committed, it can be classified as:
- Cognizable and non-cognizable offences
- Bailable and non-bailable offences
- Compoundable and non-compoundable offences
In this article, we will discuss the concept of cognizable offence, its investigation, and its proceedings. It further explains the difference between cognizable and non-cognizable offences.
What is a cognizable offence
Section 2(c) of the Criminal Procedure Code (1973), defines a cognizable offence. According to the definition given in the Code, such offences are those where the police are empowered to make an arrest of the accused without a warrant or permission from the magistrate. These offences are more serious and heinous. This classification of offences and whether a particular offence falls under the category of cognizable offence or not is given under the First Schedule of the Code. Examples of such offences are rape, murder, abduction, theft, kidnapping, etc. These offences create a threat to society and disturb the peace and harmony therein.
In these offences, the police can arrest the accused without any warrant or permission from the court and initiate the investigation proceedings. The punishment in such offences is usually more than 3 years and may extend up to life imprisonment or death. However, these offences may either be bailable or not, which also depends on the discretion of the court. The first schedule in the Code also mentions whether the particular offence is bailable or not.
When does a criminal case become a cognizable case
We all know that a crime is not committed against a particular person but against the whole society at large. Whenever any heinous crime like rape, murder etc is committed, the state takes cognizance after an FIR is lodged and an investigation begins. When the offence committed is so heinous and serious in nature and gravity that it affects society at large, it becomes a cognizable offence. Whether a particular offence is cognizable or not is mentioned under the First Schedule of CrPC.
On the other hand, non-cognizable offences are not as serious and are defined under Section 2(l) of CrPC. Police cannot arrest an accused in such cases without a warrant. They need permission from the court to make an arrest in such cases. Examples of such offences are assault, cheating, forgery, etc. In the case of State of West Bengal v. Joginder Mallick, 1979 it was held that the alleged offence is not cognizable according to the First Schedule given in CrPC, and the police cannot make an arrest just because of the reason they were empowered to do so.
Investigation in cognizable cases
The investigation into cognizable offences starts after FIR has been lodged. It is information that is given in oral or writing to the police officer and is treated as a piece of evidence obtained in matters that are cognizable in nature. It further helps in corroborating the prosecution’s case. The power of police officers to investigate a cognizable offence is given under Section 156 of CrPC. This investigation has to be carried out without permission from the magistrate.
Any police officer of a police station under whose jurisdiction an offence is committed can investigate the matter, and he will not be questioned as to the nature of the offence or whether he had the power to carry out the investigation or not. Further, any Magistrate of First or Second Class is under an obligation to order the police to investigate any such matter if the complaint received by them reveals that the offence committed is a cognizable offence (Section 190 of CrPC).
Initiation of proceedings in case of cognizable cases
The following are the steps that are involved in the proceedings whenever a cognizable offence is committed:
- Lodging of an FIR;
- If no offence is made out, a closure report is submitted, and the magistrate either accepts it or orders a re-investigation.
- If the offence is proved, a charge sheet is filed within 60 days or 90 days, as the case may be;
- The magistrate takes cognizance of the case, and the trial begins;
- The defence and prosecution present their arguments, and the magistrate frames charges;
- If prima facie no case is made out, the accused is discharged or else the trial continues until he pleads guilty.
This can be better understood as:
FIR (First information report)
The first step to initiate the investigation when a cognizable offence is committed is the filing of an FIR. It was held in the case of Lalita Kumari v. Government of Uttar Pradesh (2013) that the lodging of an FIR is mandatory under Section 154 of CrPC, if it discloses the commission of a cognizable offence, and in such a case, no preliminary inquiry is permissible. But if the information does not disclose a cognizable offence and indicates the necessity of an inquiry, it may be conducted only to ascertain whether the offence committed is a cognizable offence or not.
The following people can lodge an FIR for the commission of a particular offence:
- The person against whom the offence is committed, or the victim,
- Person associated with the victim in any manner,
- Eye witness to the offence or any person having information about the offence.
The objective of FIR is to:
- Set the criminal justice machinery in motion.
- Safeguard the interest of society.
- Help the police officials to proceed with the investigation.
- Obtain first information about the offence committed.
The procedure to file an FIR is given under Section 154 of the CrPC.
- The police must write down the information about the commission of an offence that is given orally.
- The officer must read the record information to the person who made it.
- It must be signed by the person giving the information.
- If the person is unable to sign, he/she must give a thumb impression.
- A copy of the FIR must be given to the person who lodged it.
Further, if the officer in charge of the police station fails or refuses to file the FIR. The aggrieved party can go to the superintendent of police, and if he also does the same, he/she can file a complaint with the magistrate under Section 156 of the CrPC. The court in the case of Damodar v. State of Rajasthan, 2003 held that any information given to the police on the telephone about the commission of an offence does not constitute an FIR, even if it is written down by the officer and discloses a cognizable offence unless it is confirmed.
The next step is the investigation of a cognizable offence which is done in accordance with Section 156 of CrPC, while the investigation of non-cognizable offences is done according to Section 155 of the Code. In Mohd. Yousuf v. Afaq Jahan, 2006 it was held that the magistrate is empowered with implied powers under Section 156 of the Code to ensure that any investigation in cognizable offence is done properly, and if not done so, he may order a proper investigation to be conducted by the police. Further, according to Section 57 of the Code, a person arrested cannot be detained for more than 24 hours and must be produced before the nearest magistrate.
Examination of witnesses
Section 161 of the CrPC deals with the examination of witnesses by police and gives them the power to record their statements. However, such statements cannot be used as substantial evidence before the court. The Section also provides that the witness must answer all the questions truly other than those which may expose him. This is based on the maxim “Nemo tenetur prodere accussare seipsum”, which means no man is bound to accuse himself.
On the other hand, the statements and confessions made before the magistrate under Section 164 of the Code are administered on oath and signed by the person making them. They can be used against him in court as evidence and the magistrate must inform the same to the person making such confessions. This was held in the case of Mahavir Singh v. State of Haryana, 2001.
Filing of Chargesheet
After completion of the investigation, a charge sheet is filed by the police according to Section 173 of CrPC, which states the following information:
- Names of parties,
- Nature of offence or information,
- Whether prima facie any offence is committed,
- Whether the accused is arrested,
- Whether he is released on bail,
- Medical examination and its report, etc.
The court takes cognizance of the case under Section 190 of the Code and frames charges if the case is made out or else discharges the accused. The trial begins after the court has taken cognizance of the case.
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 the 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 a 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 a 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, and ascertain the facts and circumstances of the case.
For heinous offences, no time limit has been prescribed specifically by Section 468 of Cr.P.C. for the completion of the investigation but one can always approach the Supreme Court for unreasonable delay under Article 21 which is the 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 the 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 to the case.
Arrest refers to a physical restraint put on a person as a result of an 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 making of an accusation that is so dangerous or serious in nature that it cannot be avoided. Within 24 hours of the arrest, the Police have to acquire an arrest warrant for the person in custody. Within 24 hours, the Police have all the time to investigate the offence and question the person.
When the Police arrest 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 a further period otherwise the accused has to be released. The request of remand can be granted for not more than 14 days under 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 the 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 the 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. The 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, and cross-examination of the accused and the witnesses.
In Cognizable cases, the punishment period is usually more than 3 years going up to life imprisonment or the death penalty as they are serious and heinous in nature.
Issues related to cognizable offences
- The police don’t depend on the precedents of the Supreme Court that modify 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 deter 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.
Difference between cognizable and non-cognizable cases
|Point of difference||Cognizable offence||Non-cognizable offence|
|Meaning||Offences for which the police are empowered to make an arrest without a warrant or prior permission of the court are known as cognizable offences.||Offences for which the police cannot make an arrest without the prior permission of the court are known as non-cognizable offences.|
|Provision||Section 2(c) of CrPC.||Section 2(l) CrPC.|
|Procedure of investigation||The procedure for investigating cognizable offences is given under Section 156, CrPC.||The procedure of investigation in such cases is given under Section 155, CrPC.|
|Powers of police officers||The police are empowered to make an arrest without a warrant and start the investigation as soon as an FIR is lodged, without any permission from the magistrate.||The police cannot initiate the investigation until they receive orders from the magistrate to do so.|
|Arrest||The accused can be arrested without a warrant and permission of the court.||Requires prior permission from the court.|
|Gravity of crime||Offences committed are heinous and serious as compared to non-cognizable offences.||Such offences are less serious and grave in nature.|
|Quantum of punishment||Punishment in such offences is more than 3 years and may extend to life imprisonment or the death penalty.||Punishment is usually less than 3 years.|
|Bail of accused||Cognizable offences may either be bailable or non-bailable depending upon the nature of offence and the discretion of the court.||Non-cognizable offences are bailable due to less severity.|
|Examples||Murder, rape, kidnapping, abduction, etc.||Assault, cheating, defamation, etc.|
DK Basu v. State of West Bengal (1996)
Facts of the case
In this case, a letter written by DK Basu, Executive Chairman of Legal Aid Services, West Bengal, was considered to be a writ petition. The letter addressed to the Supreme Court mentioned several custodial deaths happening in jails due to arrests made by the police.
Issues in the case
Whether there must be some guidelines with respect to the arrests of the accused and their detention in jails?
Judgement of the court
The Supreme Court in this case addressed the issue and gave guidelines for arrest which must be followed whenever any arrest is made out by the police in cognizable offences. These are:
- The officers making the arrest must wear precise, visible, and clear identification labels with their designations imprinted on it.
- They must prepare a memorandum of arrest that must be attested by at least one witness, who may be a family member of the person arrested or any person present during the arrest. This must be signed by the arrested person and shall contain the time and date of the arrest.
- The family members or friends of the person arrested must be informed about his arrest, along with the time and place of the arrest.
- A proper case diary must be maintained in this regard.
- They must also maintain an inspection memo, which must be signed by the person arrested and the police officer making the arrest. A copy of the inspection memo must be given to the person arrested.
- The person arrested must undergo a medical examination after every 48 hours that he spends in jail.
- All the necessary documents, along with the case diary and memo, must be sent to the magistrate for his reference.
Arnesh Kumar v. State of Bihar (2014)
Facts of the case
In this case, the wife alleged that she has been thrown out of her matrimonial house because her parents failed to fulfil the demands of dowry made by her father-in-law and mother-in-law along with her husband. The appellant was arrested along with his parents and filed an application for bail, which was first rejected by the Sessions Court and then by the High Court. He alleged that all the allegations made by his wife were false and fabricated. The Supreme Court in this case addressed the issue of liberal and casual arrest in cases of dowry that are heinous and fall under cognizable offences.
Issues in the case
- Is it mandatory to arrest the person accused of committing a cognizable offence?
- What remedies are available to the person arrested if the allegations and FIR were false and fabricated and resulted in his arrest?
Judgement of the court
The Supreme Court in this case restricted the powers of police officers to make an arrest in cognizable offences, especially under Section 498 A of IPC and issued guidelines for the same:
- Police officers must be instructed not to automatically make an arrest of the accused for allegations made under Section 498A of the IPC.
- They must be provided with a checklist, according to Section 41 of CrPC.
- The police officer must give reasons for not arresting the accused in writing to the magistrate.
- If the magistrate is satisfied with the reasons for the arrest of the accused, he may order further detention.
- A notice to appear must be served upon the accused within 2 weeks from the institution of the case under Section 41A of the Code.
- If the police officer fails to comply and follow the directions, he will be made liable for contempt before the High Court.
- If the magistrate makes an order for detention without considering the reasons, he shall be liable for departmental proceedings.
These directions limit the powers of the police to make an arrest in case of cognizable offences.
XYZ v. State of Madhya Pradesh (2022)
Facts of the case
In this case, a woman wanted to complain about the Vice-Chancellor of the institute where she was working for harassment but was denied by police. She filed a complaint with the Superintendent of Police but no action was taken. As a result, she decided to file a complaint with the Judicial Magistrate First Class. The magistrate, after receiving the complaint, ordered the police to conduct an investigation. However, the proceedings were delayed due to the Covid-19 pandemic. At the onset of proceedings, the Magistrate allowed the complainant to examine the witnesses, who were questioned by the appellant. The High Court rejected his application on the ground that it was not mandatory for the Magistrate to order an investigation.
Issues involved in the case
Whether the Judicial Magistrate First Class is under an obligation to order an investigation under Section 156 of the Crpc.
Judgement of the Court
The Supreme Court in this case held that a magistrate is only under an obligation to order an investigation if, prima facie, it is shown that the offence committed is cognizable in nature. It was observed that the word ‘may’ used in the Section gives the magistrate discretionary power, wherein it is not mandatory to order an investigation. He is entitled to order an investigation only when a cognizable offence is committed. The Supreme Court also observed that the decision by the High Court that it is not obligatory for a magistrate to order an investigation was correct.
State of Jammu and Kashmir v. Dr. Saleem ur Rehman (2021)
Facts of the case
In this case, the FIRs filed under the Ranbir Penal Code (1989) and J&K Prevention of Corruption Act (1949) were quashed by the High Court on the ground that no prior sanction of the magistrate was taken for investigation. The offences committed were non-cognizable according to the Code. This issue was taken up in the Supreme Court.
Issues involved in the case
Whether the prior sanction of the magistrate is necessary for conducting an investigation in non-cognizable offences?
Judgement of the court
The Hon’ble Supreme Court in this case observed that the High Court made an error while examining whether it is necessary to obtain permission from the Magistrate to conduct an investigation in non-cognizable offences. It was held that there is no need to obtain any such sanction from the Magistrate to conduct an investigation in non-cognizable offences along with cognizable offences.
- 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.
It can be concluded that offences can be classified into 3 categories on the basis of the nature and gravity of the crime. These are bailable and non-bailable offences, compoundable and non-compoundable offences and cognizable and non-cognizable offences. Based on the kind of offence, further steps are taken by authorities under the criminal justice administration. India follows an adversarial system in which the investigation is carried by police and a judge being neutral decides a case on the basis of arguments presented by the prosecution and defence. This also leads to delays in cases, which is a major problem in our country. This is different from what is done in the inquisitorial system, where the magistrate can himself conduct an investigation, which helps him decide the cases much faster than in an adversarial system. To deal with the situation, many recommendations have been made by various committees, and measures have been taken from time to time. Our criminal justice system tries to protect the rights of both parties and gives them a fair chance to represent their side.
Frequently Asked Questions (FAQs)
How are bailable offences different from non-bailable offences?
Offences for which bail is a matter of right are bailable offences. These are less serious in nature and defined under Section 2(a) of the Code. Examples of such offences are bribery, defamation, etc. On the other hand, non-bailable offences are those in which bail is not a matter of right and the accused has to apply to the court and his bail depends on the discretion of the court. Examples include, murder, dowry, rape, etc.
What are compoundable offences?
Offences in which the victim can enter into a compromise with the accused outside the court to drop the charges against him are known as compoundable offences. These are given under Section 320 of the CrPC. Grievous hurt, Criminal breach of trust etc are some examples of such offences.
What do you mean by Zero FIR?
The FIR that is lodged in any police station, irrespective of its jurisdiction, to deal with the matter is known as a ‘Zero FIR’. The concept of zero FIR was inserted as a result of the Justice Verma Committee’s recommendation after the Nirbhaya Rape Case. It is further transferred to the concerned police station.
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