Cognizable and Non-Cognizable offence in India

COGNIZABLE AND NON-COGNIZABLE OFFENCE

The Criminal Procedure Code was brought into existence to provide for machinery for the provision and execution of punishment in consonance with the substantive criminal law (the Indian Penal Code, or any other criminal law). It basically provides rules of proceedings against an accused.

Under the CrPC, all offences may be characterized on the basis of arrest or cognizance, on the basis of the right to bail, on the basis of the type of trial and on the basis of the right to compromise.

ON THE BASIS OF ARREST OR COGNIZANCE

This article would only deal with the classification based on arrest or cognizance.

RATIO OF SUCH CLASSIFICATION

The offences are classified according to whether a warrant is required for the purpose of investigation and arrest by the concerned police officers. This classification has been made to serve a two-fold purpose:-

1. The first one being, execution of arrest without warrant, and
2. Secondly, the investigation of offences without the permission of the court.

BASIS OF CLASSIFICATION

The cognizance of an offence depends upon its seriousness. The seriousness of the offence is decided by looking into the punishment of that offence. All offences punishable with imprisonment of more than three years are the serious offences and hence are considered to be cognizable.

DEFINITION: The terms cognizable and non-cognizable offence have been defined in Section 2(c) and Section 2(l) respectively as under:-

Section 2 (c) defines the cognizable offence as any offence for which a police officer may execute a lawful arrest without a warrant, While

Section 2 (l) defines non- cognizable offence as any offence in which a police officer is ripped off the authority to execute an arrest without a warrant.

Further, the word cognizance has been interpreted by the court in Ajit Kumar Palit v. State of West Bengal[1] as the word cognizance has not been defined in the code. The court explained that it merely means “become aware of” and when used with reference to a court, or a judge, or any judicial officer, it means “to take notice judicially”.

The code does not lay down a precise test of classifying any provided offence as cognizable or non-cognizable. However, it does broadly state that any offence punishable with death, or life imprisonment, or any other punishment over 3 years is to be regarded as a cognizable offence, while expressly providing that this test is subjected to exceptions.

The Supreme Court in the case of State of West Bengal v. Swaran Kumar Guha and Others[2] observed that giving unfettered discretion to the police to decide whether a case is cognizable or non-cognizable would prove to be a ruthless destroyer of personal freedom. It was emphasized that the principles of natural justice are to be followed in every case of determination. It further directed that:

1. It is necessary that all the reasons for making an offence cognizable must be disclosed in the FIR before starting an investigation.
2. The exercise of the powers of investigation must not be misused in any way violating the constitution and legal rights of the accused.
3. But, if in any case it is felt by the court that the rights of an individual are being violated in the investigation process or that the correct procedure is not being followed, the court must intervene in such process.

INVESTIGATION OF COGNIZABLE OFFENCE BY POLICE

The officer-in-charge of a police station may investigate any offence registered in his police station, whether the offence was committed within or without the jurisdiction of the said police station. In such cases, any police officer above the rank of Head Constable is empowered to investigate it on the behalf of the Station house Officer.

Sections 156- 158 lay down the procedure that the police needs to follow on receipt of a complaint of a cognizable offence. Under these provisions, the police are empowered to register complaint even on a piece of information which raises a reasonable suspicion of commission of an offence, although a final report has to be sent to the magistrate. It has also been provided that the police may suo motu take up cognizable cases. However, the police have to ensure that the arrested person cannot be detained for more than 24 hours in the absence of a special order from a magistrate. If an investigation can, however, not be completed within the said 24 hours, and the investigating officer thinks that the accusations are well-found, then the officer must forward the accused to the nearest magistrate.

INVESTIGATION OF NON-COGNIZABLE OFFENCE BY POLICE

In the case of non-cognizable offence, the officer may get an order from the magistrate to investigate, but he shall have no power to arrest the accused without a warrant.

When a piece of information is given to an officer of a non-cognizable offence, he is bound to record such information in a book to be maintained by him in such form as may be prescribed by the state government, and further refer the informant to the magistrate.

CRITICISM

The execution of arrest without warrant and investigation without the permission of the court has led to some undesirable consequences too. For instance, in respect of social reform litigation where the offence is punishable with less than three years, there is practically no enforcement of the law as the police are not authorized to take any initiative in such cases.[3] However, if such offences are expressly made cognizable, it would serve the social policy better. Steps have been taken towards making such express provisions, for instance, a person accused under

1. The Child Marriage Restraint Act, 1929
2. Possession without lawful excuse
3. Who has been proclaimed as an offender
4. Obstruction of the police officer in performing his duties
5. Desertion of the Armed forces of the Union, etc.

CONCLUSION

I would like to conclude that although the classification of offences has been made to make the dispensation of justice easier, still it is hindered because of grey area left in the classification, so there remains a need for reclassification as suggested above.

[1] AIR 1963 SC 765

[2] 1982 SCC 561

[3] R.V.S. Kelkar, Outlines of Criminal Procedure, Lucknow: Eastern Book Company, Second Ed. 1984, P.26.