This article has been written by Nivrati Gupta, a student of the Institute of Law, Nirma University, Ahmedabad. This article covers Sections 154, to 156 of the Code of Criminal Procedure which deals with Information given to the police regarding the cognizable and non-cognizable offence.
The police force is one of society’s most important organisations. The police happen to be the government’s most visible leaders. They represent the civil body of the government in charge of maintaining peace and order. They are responsible for keeping a check on the proper enforcement of the law and investigating and detecting malicious or criminal activities. In an hour of need, risk, crisis, and difficulty, when a citizen does not know what to do or who to approach, The police station and police officers are the most appropriate and available units and individuals to them. The most important function of policing is investigating crimes and illegal activities. This article deals with the Information part i.e. the first step of Investigation.
Information to the Police
The preamble of the Police Act, 1861 speaks about police being an efficient instrument for the prevention and detention of crime. Police play a dual role as it maintains public order and law of the state. Controlling illegal activities, promoting properties, preserving public order, preventing malicious and terrorist activities, providing security, preserving rights of weaker sections, and last but not least registering complaints.
The action process of every act mentioned above starts with the Information on the offence or illegal act committed. An offence is defined in Section 40 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) and Section 2(n) of Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC). The offence is any act that is considered punishable or against the rules, under the Indian Penal Code or any other Criminal Law of the state.
An offence under Indian Criminal Law is classified as-
- Bailable and Non-bailable Offence
- Cognizable and Non-cognizable offence
- Compoundable and non-compoundable offence
(a) Bailable and Non-bailable Offence
Section 2(a) of CrPC defines the bailable offence as an “offence which is shown as bailable in the First Schedule, or which is made one by any other law for the law in force in the state. Whereas “non-bailable offence” means any other than the bailable offence. An offence to be qualified under bailable offences, it shall hold imprisonment for less than three years or with fine.
Non-bailable offences are one which are grievous in nature Eg; Murder Sec 300 of IPC. Bail is a matter of discretion, whereas in bailable offences it is a matter of right.
(b) Cognizable and non-cognizable Offence
Section 2(c) of IPC defines “cognizable offence” as an act that qualifies an offence for a police officer, according to the Ist Schedule, or under the law being enforced at that time. In a cognizable offences, an arrest can be made without a warrant. In a cognizable offences, the crime is serious in nature, and the investigation begins immediately; the police need not have to wait for the court orders.
- Waging war or attempting to do so against the government of India Section 121 of IPC,
- Rioting armed with a deadly weapon Section 144 of IPC,
- Being or expecting to be a public servant and taking gratification other than legal remuneration in respect of an official act. As stated in Section 7 of the Prevention of Corruption Act.
Section 2(l) defines a non-cognizable offence as an offence for which a police officer has no authority to arrest without a warrant. They are not serious or heinous in nature and police do not have the power to arrest without a warrant nor have the power to start an investigation without the orders of the Magistrate. In non-bailable offences, the first step is the filing of an FIR which is registered after which investigation starts. Then a charge sheet is made in the Court and finally, the trial starts.
- Public servant doing an Act which would qualify as disobeying the law with an intent to cause injury to any person Section 166 of IPC
- False statement in connection with an election Section 171-G of IPC
- Giving false evidence in a judicial proceeding Section 193 of IPC
(c) Compoundable and Non-compoundable offence
Compoundable offences according to Section 320 of CrPC are offences where the one has to file the case and enter into a mutual consensual situation with the party who committed the act and agrees to drop off the charges. The offence of the accused should not be grave in nature such that, compromise is not admissible. Compoundable offences are mostly non-cognizable. Compromise done in compoundable offences should be “Bonafide”. Once compounded of an offence the charges of the accused are dissolved.
- Criminal or house-trespass
- Printing or speaking something which qualifies as defamatory (compoundable on the discretion of the court)
It is to be noted that some require the permission of the court before compounding.
Non-compoundable offences cannot be compounded on a compromise between the parties, The nature of the offence is so grievous and criminal, that the accused cannot be allowed to go unpunished. Non-compoundable offences are those whose criminal liability cannot be dissolved by a mere compromise between the parties.
- Voluntarily causing hurt by deadly weapons
- Assault or criminal force on a woman intending to outrage her modesty
- Wrongful confinement of a person for more than 3 days
The rules of conducting the procedural trials or investigation on the offence committed are dealt with under the Code of Criminal Procedure. The Indian Penal Code does not provide the prosecution part of any offence. Crpc provides with, step by step process which begins with information, investigation inquiry, and trial of the offence.
The first step to investigate any offence by the police is the Information, as mentioned in Chapter XII of the Code of Criminal Procedure, which deals with the process of involving Information to the Police and the Powers of Police to Investigate.
This chapter is divided into two parts: the first- dealing with Information procedure and the second part- deals with the next step that comes after Information, which is Investigation of the offence or suspicion of wrong based on the Information.
Information in cognizable offences
Cognizance as already mentioned above, is an offence in which a person is arrested without a warrant. Information to be given regarding a cognizable offence is discussed in Section 154 of the Code of Criminal Procedure which reads-
Information regarding a cognizable offence is given orally to an officer in charge. Such information to be reduced in writing by the officer. The written information is to be read to the informant. Every such information, in writing or reduced to writing is to be signed by the person giving it. The matter shall be entered in a book to be kept by such officer in such form as prescribed by the State Government.
General Diary- (1) All the information relating to a cognizable offence, be it a mere inquiry of FIR is to be registered in General Diary and the result of preliminary inquiry is also to be noted down in the general diary. Case- Youth Bar Association Of India vs Union Of India AIR 2016 SC 4136
(2) A copy of the information recorded by the officer in charge has to be given to the informant free of cost.
(3) If a person is aggrieved by refusal on filing a complaint by the officer in charge, in that case, such a person may send such information (denied of filing a complaint), in writing to the Superintendent of Police concerned and if the SP is satisfied that such information concerns the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.
First Information Report (FIR)
“An FIR (First Information Report) is the earliest form and the first information reported by a police officer in charge of a cognizable offence.” It is a written work prepared by the police in charge when they first primarily receive the information regarding a cognizable offence. There is no mention of FIR in CrPC. The purpose of FIR is to set the procedure in the process.
Ingredients of an FIR in terms of section 154 of the Code
- What is conveyed must constitute information of an offence.
- The Information conveyed should be regarding the commission of a cognizable offence.
Value of FIR- The value of FIR depends upon the circumstances and facts of the case. It is not treated as a piece of substantive admissible evidence by the court. It cannot be used to contradict or discredit the witness. Dharma Rama Bhagare vs The State Of Maharashtra (1973 AIR 476). FIR is only a complaint to set the procedure prescribed by law in motion.
A copy of FIR is to be provided by the police officer in charge of the complainant as prescribed under Section 207 of CrPC.
Time duration in lodging FIR
FIR should be filed immediately and promptly. The delay in setting the law in motion by lodging a complaint is viewed as suspicious by the courts as it adds to the possibility of fabrication and embellishment of the evidence.
In Damodar v. State of Rajasthan (AIR 2003 SC 4414) it was said that any information conveyed to police via telephone will not constitute an FIR even if the information disclosed commission of a cognizable offence.
Information in non-cognizable offences
non-cognizable offences as discussed, are offences which are heinous in nature and the police do not require a warrant to arrest the person accused.
Section 155 of CrPC talks about Information relating non-cognizable cases and investigation of such cases. Section 155 reads as:
- When information is given to an officer in charge for the commission of a non-cognizable offence, within the limits of such station regarding a non-cognizable offence, he shall enter the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
- No police officer will investigate a non-cognizable case without the order of the Magistrate having power and jurisdiction to try such cases for trial.
In Sudarshan v. the State of Karnataka (1979) 2 Karn LJ 449, it was held that any investigation into a non-cognizable offence which is done without the order of the Magistrate shall be deemed to be illegal and won’t be considered legal after subsequent permission of the authority.
Under the Criminal Procedure Code, Section 155, no police officer can investigate a case that is not identifiable without the permission of the magistrate concerned. When a policeman asks the magistrate for permission, it is not necessary for him to automatically grant permission. In these cases, it is open to the Magistrate to either grant permission or refuse to grant permission but should offer reasons for his decision, In a trial before the High Tribunal.
- Any police officer after receiving such an order specified has the power to exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station holds in a cognizable case.
- Where a case falls under two or more offences of which at least one of the offences is cognizable in nature, in such a scenario the case will be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
If a person gives information to the police in charge for the commission of a non-cognizable offence, the officer shall enter such information in a book prescribed by the State Government.
Non-cognizable offences are more so considered as private wrong and therefore, the code considers that it is important that the investigation is ordered by the Magistrate. It is also important to note that in cases where a person has committed two or more than two crimes amongst which one of the offences falls under cognizable offence, then in such a case the combined case is treated as a cognizable offence and treated under the procedure of a non-cognizable offence.
Powers of police to investigate cognizable offences
Section 156 of CrPC reads the powers granted by the law to the police in matters of cognizable offences. Police officer’s power to investigate cognizable cases:
- Any officer in charge of a police station, without a Magistrate’s order, investigates such a case in which a court having jurisdiction over the local area within the jurisdiction of that station would have the authority to investigate such case or try one under the Chapter XIII provisions.
- No proceeding by a police officer shall be called into question at any stage on the mere ground that the case was one which that officer was not empowered to investigate under this section.
- Any Magistrate empowered under Section 190 of CrPC may order such inquiry as mentioned above.
According to this clause, without Magistrate’s order, a police officer is allowed to investigate cognizable offences. The provision also immunizes the police officer by banning any proceedings to be called into question, on the basis that any police officer exceeded or was prevented under the provision from exercising that control.
Power of magistrate under Section 156(3)
As discussed above under Sec 154, if a person has a grievance that the police in charge have not registered F.I.R, such a person can approach the Superintendent of Police (SP) under Sec 154(3). If still no action has been taken such person under Sec 156(3) can approach the Magistrate. In case when f SP also does not register FIR, or despite FIR is registered, no proper investigation is done, in such a case, the aggrieved person can approach the Magistrate concerned under section 156 (3) of CrPC.
It has been held by The Supreme Court in CBI & another vs. Rajesh Gandhi and another 1997 that ”no one can insist that an offence be investigated by a particular agency”. In Sakiri Vasu vs State Of U.P. And Others, It was held that if an informant is having a grievance that the police in charge is not registering his FIR under Section 15then, in that case, he can approach the SP under Section 154(3) via a written application. If still no action is taken, it is open to the aggrieved party to file an application under Section 156(3) CrPC before the Magistrate holding the jurisdiction. Under Section 156 (3),an application is filed before the Magistrate which it can direct the FIR to be registered and can also direct an investigation to be made by the officer in charge.
Dk Basu V. State Of West Bengal
Mr. DK Basu, the Chairman of Legal Aid Services, a non-political organization registered under the Societies Registration Act, wrote to the Chief Justice of India raising questions about recent deaths and abuse in police custody and lock-ups. The letter was treated as a writ petition when filed before the Supreme Court.
In this case, DK Basu v. State of West Bengal the court prescribed 11 guidelines adhering to Article 21 and Article 22(1) which needs to be strictly followed otherwise the official will be liable to be fined for the contempt of the court and proceedings against shall be instituted.
- The police personnel carrying out the arrest procedure and handling the interrogation process of the person arrested, should have a clear identification of the name with their designations.
- The police personnel carrying out the arrest shall make a memo at the time of the arrest.
- The person who has been arrested shall be entitled to have a friend, relative or any other person known to him that he has been arrested or detained at the particular place.
- The time, place of arrest and venue of custody of an arrestee, must be notified by the police and where the friend or relative of the arrestee lives outside town by the Legal Aid Organisation situated in the District and the police station of the area concerned within a period of 8 to 12 hours after the arrest is made.
- The arrested person must be aware of his right to inform someone of his arrest.
- An entry should be made at the place of detention and name of the person in custody. A friend of the person in custody has to be informed and details of police officials must be attached within the report.
- The arrestee should be examined at the time of arrest and any injuries on his body must be recorded. The inspection memo must be signed both by the arrestee and police officer concerned and a copy must be provided to the arrestee.
- The arrestee should be subjected to medical examinations every 48 hours during his detention by a trained doctor.
- Copies of all the documents including the memo of arrest should be sent to the Magistrate for his record.
- The arrestee must be permitted to meet his lawyer during the interrogation but not throughout the whole interrogation.
- A police control room should be formed in all district and state headquarters. Information about the arrest and place of custody of the arrested person must be communicated in these centers by the arrested officer. It should be displayed on the police control room notice board within 12 hours of the arrest.
This case thus, gave a landmark judgment in which guidelines regarding a person’s arrest were prescribed otherwise in the name of doing justice more crimes would be committed. It prevents any infringement of an individual’s rights during detention, and thus protects all citizens through certain legal procedures.
Mohd. Yousuf vs Smt. Afaq Jahan & Anr
In Mohd. Yousuf vs Smt. Afaq Jahan & Anr Any Judicial Magistrate may order an investigation under Section 156(3) of the Code, before it becomes aware of the offence. If he does so, he is not going to examine the plaintiff on oath because he did not recognize any offence in it. It is open to the Magistrate to direct the police to register an FIR in order to enable the police to commence the investigation. Nothing is illegal in doing so. The FIR registration involves the mere process of entering a book kept by the police station officer as clearly mentioned in section 154 of the Code the substance of the information given relating to the commission of the cognizable offence.
Even if a Magistrate does not say in so many words when directing an investigation pursuant to Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR in respect of the cognizable offence disclosed by the complaint, since that police officer could only take further steps contemplated in Chapter XII of the Code later.
The same view was observed in Dilawar Singh vs the State Of Delhi.
Lalita Kumari v/s Government of UP & others
A Supreme Court Constitution Bench, in Lalita Kumari v. Govt, held that the registration of the First Information Report is compulsory under Section 154 of the Code of Criminal Procedure, provided that the information discloses a cognizable offence then no preliminary inquiry is permissible in such a situation. If the received information does not reveal a cognizable offence but indicates an immediate need for an inquiry, an introductory inquiry may only be conducted to determine whether or not a cognizable offence is disclosed.
The Supreme Court issued the following Guidelines to Register FIR:
- Under Section 154 of the Code, registration of FIR is mandatory if the information discloses commission of a cognizable offence and no preliminary inquiry is permitted in such a situation.
- The information received does not disclose a cognizable offence, but indicates the need for an inquiry, then a preliminary inquiry may only be conducted to determine whether or not a cognizable offence is identified.
- If a cognizable offence is disclosed by the inquiry, the FIR must be registered. In cases where the preliminary inquiry ends with a closing of complaint, a copy of such closure entry must be provided to the first informant immediately and time duration must not be exceeded than one week. It must convey reasons for closing the complaint in brief and not proceeding further.
- The General Diary or station diary is the record of all the information received in a police station, all the information relating to cognizable offences, whether it resulted in an FIR registration or to an inquiry, it must be reflected compulsorily and meticulously in the general diary.
Information is the communication key between the general public and police. It is the first step in any investigation process. Policing is a job of utmost sincerity and should be practiced without favoritism and discrimination. The officer in charge should handle this process with utmost patience, diligence, and fairness, without misusing their powers. We keep on hearing cases where police refuse to file an FIR because it’s against some high profile person, writing a fake FIR against a person for mere some amount of money. Police play a binding role between the public and government, if the police machinery starts commiting ill practices there will be chaos and the government will fail.
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