The CrPC does
not contemplate the use of the police in respect of investigation into each and
every offence. The Code has classified all offences into two
categories—cognizable and non-cognizable.
Clauses (c) and (l) of Section 2
define "cognizable" and "non-cognizable" offences as follows:
2. (c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
(l) "non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to to arrest without warrant;
In case of a cognizable offence, a police officer can arrest the alleged culprit without warrant and can investigate into such a case without any orders or directions from a Magistrate. The law not only allows the police officers to wield these powers but also enjoins them to exercise the same in respect of a cognizable case. In case of a cognizable offence, it is the responsibility of the State (and the police) to bring the offender to justice.
Where the offence is not
cognizable according to the First Schedule of the Code or it has not been made
cognizable by the Act creating it, it would not be considered as cognizable
simply on the ground that for the commission of such offence under certain
circumstances the police is given the power to arrest without warrant.
In case of a
non-cognizable offence, generally speaking, a police officer cannot arrest
without a warrant, and secondly, such officer has neither the duty nor the
power to investigate into such an offence without the authority given by a
Judicial Magistrate. Exceptions apart, the non-cognizable offences are
considered more in the nature of private wrongs and therefore the collection of
evidence and the prosecution of the offender are left to the initiative and
efforts of private citizens. However, if a Judicial Magistrate considers it
desirable that a non-cognizable case should be investigated into by the police,
he can order the police to do so. In that case the police officer will have all
the powers in respect of investigation (except the power to arrest without
warrant) as he would have exercised if the case were a cognizable one.
Basis of the distinction between cognizable and non-cognizable offences
It will be seen that the
Code has not given any test or criterion to determine Whether any particular
offence is cognizable or non-cognizable. It all depends upon whether it is
shown as cognizable or non-cognizable in the First Schedule of the Code. That
schedule refers to all the offences under the Penal Code, 1860 (IPC) and puts
them into cognizable and non-cognizable categories. The analysis of the
relevant provisions of the schedule would show that the basis of this
categorization rests on diverse considerations.
Generally speaking, all
serious offences are considered as cognizable. The seriousness of the offence
depends upon the maximum punishment provided for the offence. By and large,
offences punishable with imprisonment for not less than three years are taken
as serious offences and are made cognizable. In case of serious offences like
murder, robbery, Counterfeiting coins etc., prompt police action for the arrest
of the offender and the investigation into the case is highly necessary for
successful prosecution; therefore it is advisable to treat these offences as
cognizable offences.
However, certain offences
though serious according to the above said criterion, have been considered as
non-cognizable only. Offences relating to marriage (covered by Ss. 493—97 IPC)
including bigamy and adultery are punishable with more than five years'
imprisonment. However, they are more in the nature of private wrongs and making
them cognizable might involve too much risk of police-intervention in the
private family life of the individuals. Therefore, though these offences are
serious in view of the maximum limits of punishments provided for them, still
they have been put in the category of non-cognizable offences.
Chapter XI IPC deals with "False Evidence and Offences against Public Justice". Most of these offences including the offences of "giving or fabricating false evidence in judicial proceeding", causing disappearance of evidence etc., are punishable with imprisonment for more than three years and thus are undoubtedly serious. However, the First Schedule of the Code shows most of them as non-cognizable only. Probably it is apprehended that if these offences are made cognizable, that might create risk of police interference in the conduct of court proceedings in respect of which such offences are alleged to have been committed. Such police interference would not be quite a desirable position.
As a broad proposition it
can be said that offences which are not serious and are punishable with less
than three years imprisonment are treated as non-cognizable offences. These
offences are mostly in the nature of private wrongs, for example, ordinary
cases of assault, intentional insult, simple hurt, defamation etc.
It may, however, be noted
that certain offences which are not punishable with imprisonment for three
years or more, and are not therefore considered serious, have been made
cognizable. For instance, many of the offences covered by Chapter VIII IPC,
"Offences against the Public Tranquility" are punishable with less than
three years' imprisonment, yet, they have been made cognizable; so also the
offence of negligently doing any act known to be likely to spread infection of
any disease dangerous to life' [ss. 269—70 IPCI offence of defiling the water
of a public spring etc., [S• 277 IPC] offence of dealing with any poisonous or
explosive substance so as to endanger human life, [ss. 284—86 IPC] the offence
of uttering words or making gestures to insult the modesty of a woman [S. 509
IPC] - all these offences have been made cognizable even though the punishment
provided for them is not of a severe type. The necessity of making prompt
arrest of the offender is the probable reason for making these offences
cognizable. It might also be, that it is not desirable to leave the pre-trial
proceedings in the hands of private citizens in respect of such offences.
As it is not possible to
list all offences under all the laws other than the IPC because some offences
would be created by enacting new laws and it might be difficult to amend the
Schedule every time such new law is passed—the First Schedule makes a general
rule whereby all offences punishable with imprisonment for three years or more
have been made cognizable and others non-cognizable. However, this rule can
suitably be modified according to any particular need by making a specific
provision in law and declaring a particular offence as cognizable or
non-cognizable. For instance, offences under the Protection of Civil Rights
Act, 1955, are all punishable with imprisonment up to six months or/and fine;
however, all these offences have been made specifically cognizable by Section
15 of that Act.
Weakness of the
classification in its present form
An offence is cognizable
if it is shown as such in the First Schedule of the Code; and if it is so shown
as cognizable, a police officer can arrest without warrant for such an offence.
A question may arise as to the advisability of having such arrangement for making
arrest-decision. "It is usually assumed that judicial participation in
decision-making is desirable in criminal justice system in order to ensure a
fair balance between the interests of society and of the individual.
[Therefore] . . . in the absence of any need for immediate action the normal
and desirable method for determining whom to arrest is by the police presenting
the facts to a Magistrate who is removed from the combative task of detecting
crime and bringing about the arrest of the offenders.
The
"cognizable"—"non-cognizable" classification as given in
the First Schedule either presupposes the need of immediate action in respect
of every cognizable offence, or otherwise it considers unnecessary in all
cognizable cases to have the arrest-decision be made by a "neutral and
detached" judicial officer. In either case it is not quite fully
defensible. Moreover, the present arrangement presupposes that every police
officer knows by heart the provisions of the First Schedule and the provisions
of other laws that make hundreds of offences as cognizable or otherwise. This
is obviously assuming too much. The same classification has also been used to
determine the power of the police to investigate into a case without any
specific authority given by a Judicial Magistrate. The element has also to an
extent contributed to the irrationality of the classification in its present
form, and has made it functionally less suitable.
The present "cognizable" —"non-cognizable" classification of offences is apparently and essentially intended to indicate as to whether the arrest in respect of an offence can be made with or without a warrant. But the same classification has been pressed into service to determine whether the police should or should not have the power to initiate investigation without any order from the Magistrate or to take preventive action. This has unwittingly led to some undesirable consequences. In respect of many social reform laws where the offences are mostly punishable with less than three years' imprisonment and therefore non-cognizable, there is practically no enforcement as the police are not supposed to take any initiative in such cases. If therefore such offences are expressly made cognizable with a view to have better implementation of such laws, the police automatically get wide powers to make arrests without warrant.
Giving of such wide powers to the police is often considered undesirable because of the apprehension of too much police-interference in the sensitive social reform areas. Therefore the dilemma caused by the use of the same classification for two divergent purposes continues to haunt the legislative policy-makers. In this context, it is worth taking note of an innovation apparently intended to overcome this dilemma by making certain non-cognizable offences as cognizable, only for the purposes of investigation and prevention of such offences but without giving the police the power to arrest without a warrant. Certain amendments have been made in the Child Marriage Restraint Act, 1929 by the Child Marriage Restraint (Amendment) Act, 1978. This Amending Act provided for the insertion of a new section, viz. Section 7 in the Parent Act. The new section is as follows:
7. Offences to be cognizable for certain purposes.—The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if they were cognizable offences—
(a.)
for the purpose of investigation of such
offences; and
(b.) for the purposes of matters other than (i) matters referred to in Section 42 of that Code, and (ii) the arrest of a person without a warrant or without an order of a Magistrate.
This innovation though somewhat clumsy in its form might stimulate in the future better formulations for functionally more suitable classifications of offences.
It seems that now the trend is to make serious offences cognizable irrespective of the punishments carried by them. For example, in Criminal Law (Amendment) Act, 2013, except the newly created offence under Section 166-B (non-treatment of victim by hospital) all other offences such as rape, stalking, voyeurism, trafficking, hurt by acid, etc. have been made cognizable.
The offences of sexual intercourse by husband upon his wife during separation, under Section 376-B and sexual intercourse by a person in authority under Section 376-C have been shown in column 4 of Schedule I as follows:
Offence
376-8 Cognizable (only on the complaint of the victim)
376-c Cognizable
This is one more instance of the innovations in the traditional categorization of offences into cognizable and non-cognizable offences. The offence under Section 376-B here has been made cognizable only on the complaint of the wife. Thus it lacks in this respect the essential attribute of a cognizable offence.
There is yet another instance where the traditional rigid categorization of offences into cognizable and non-cognizable has been modified in a pragmatic manner to sub serve the needs of the particular situation. The offence under Section 498-A has specifically been made cognizable only if the information is given to the police officer by the persons mentioned in Section 198-A. Thus the offence under Section 498-A is placed in between the two categories of cognizable and non-cognizable offences.14
Similarly, Section 7(c),
Muslim Women (Protection of Rights on Marriage) Act, 2019 provides that the
offence punishable under the Act shall be cognizable if the offence is reported
to an officer in charge of a police station by the married Muslim woman upon
whom talaq is pronounced or any person related to her by blood or marriage.
Here's the video of Cognizable and Non-Cognizable offences:
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