COGNIZABLE AND NON COGNIZABLE OFFENCE, PART 2

Non-Cognizable Offence

  1. A non-cognizable offence or a non-cognizable case has been defined in theCriminal Procedure Code as an offence for which the police have no authority to arrest without awarrant.
  2. Non-Cognizable offences are those which are lessserious in nature. Example- Assault, Cheating, Forgery, Defamation, etc.
  3. Section 155 of CrPCprovides thatif apolice officerreceives information regarding the commission of anon-cognizable offence, he is supposed to enter the substance of the case in the station diary and refer the informant to approach the concerned Magistrate.
  4. Under a Non-Cognizable offence/case, in order to start the investigation, it is important for the police officer to obtain the permission from the Magistrate.

What are the Powers of a Police Officer While Investigate Cognizable Cases?

Any officer-in-charge of a Police Station, without the order of a magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of the Criminal Procedure Code. 1973.

The Supreme Court of India, in Lalita Kumari vs. Govt. of UP on 12 November, 2013 held that ‘the police must compulsorily register the FIR on receiving a complaint if the information discloses a cognizable offence, and no preliminary inquiry is permissible in such a situation’.

The police cannot refuse to register the case on the ground that it is either not reliable or credible (Smt. Gurmito vs. State of Punjab And Ors 1996 CriLJ 1254 P&H). Further, refusal to record FIR on the ground that the place of crime does not fall within the territorial jurisdiction of the police station, amount to dereliction of duty. Information about cognizable offence would have to be recorded and forwarded to the police station having jurisdiction (State of Andhra Pradesh vs. Punati Ramulu And Others, AIR 1993 SC 2644).

It is the duty of the officer-in-charge of the police station to register an FIR when investigation under section 156(3) of CrPC is directed by the Magistrate, even when the Magistrate explicitly does not say so (Mohd. Yoysuf vs. Afaq Jahan, (2006), SCC 627).

What are the powers of the police officer while investigating a non-cognizable offence?

A non-cognizable offence is an offence where a police officer is not authorized to arrest in the absence of a warrant. The police cannot arrest any person without a warrant and start investigating the matter on their own. The police officer must seek an order from the magistrate under section 155(2) of CrPC. The aggrieved party must file a complaint in the concerned police station in order to initiate an investigation. After the completion of the investigation, the police officer must file the charge sheet in court. After the trial, the court passes orders regarding the issuing of a warrant to arrest the accused.

Cases consisting of both Cognizable and Non-Cognizable Offences

According to Section 155(4) of the Criminal Procedure Code, when two or more offences are there in a case, of which at least one is of cognizable nature, and other of non-cognizable nature, then the entire case has to be dealt as a cognizable case, and the investigating officer will have all the powers and authority as he has in investigating a cognizable case.

What is the Procedure to be followed in Cases of Cognizable Offences

The procedure relating to the Cognizable Offences has been described below:

1. First Information Report
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.

2. 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.

3. 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.

4. 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.

5. Arrest
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:

  1. Intention to arrest under authority;
  2. Detention in legal manner; and
  3. 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.

6. Remand
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.

7. 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.

8. Medical Examination
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.

9. Chargesheet
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.

10. Inquiry
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.

11. Trial
The hallmark of trial is that every witness who gives evidence will now give the same evidence in court is binded by an oath. Trial has several categories:

  1. Trial of warrant case by a magistrate;
  2. Trial of summons case by a magistrate;
  3. Trial started on cognizance taken on a police report; and
  4. Sessions Trial.

In cognizable offences, the trial is usually under Warrant Case or Sessions Case as they deal with more serious and heinous offences.

12. Judgment
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.

12. Punishment
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.

What is the Procedure to be followed in Non- Cognizable Cases?

Under the Code of Criminal Procedure, no police officer should investigate a non-cognizable case without the order of concerned magistrate. When a police officer approaches the magistrate for permission, it is not incumbent on him to grant the permission invariably.

It is open to the magistrate either to grant permission or refuse to grant permission in such cases but should give reasons for his decision. In a case before the High Court, an accused challenged the order of a magistrate in according permission to the police to investigate the offence registered against him under Section 182 IPC (false information with the intent to cause public servant to use his lawful power to the injury of another person).

As for the case details, an official enquiry was conducted against some officials who indulged in corrupt practices while discharging their official duties. Prior to it, a preliminary enquiry was conducted by a police officer and as part of it, he recorded the statements of the petitioner-accused and some others.

However, during the official enquiry, they gave volte-face and did not support the version that was given by them before the police officer regarding the corrupt practices of the delinquent officials. On the contrary, they turned hostile and given false statements to help corrupt delinquent officials. Taking it seriously, the police officer lodged a complaint against them for the offence under Section 182 IPC.

Accordingly, the concerned sub-inspector of police registered the case against them for the said offence which was a non-cognizable offence and the officer (complainant) sought for permission of the concerned magistrate to investigate the matter. When the magistrate accorded permission to investigate, the accused challenged it before the High Court.

Prior permission
The counsel for the petitioner-accused contended that as per Section 155 CrPC, the police are not authorised to register FIR in respect of the information received by them which discloses the commission of a non-cognizable offence. The SHO of concerned police station should only enter the substance of the information in the diary and refer the informant to the concerned magistrate and upon receiving the order from the latter only, the officer should investigate into the matter. Except for according permission, the magistrate has not passed any “speaking order”, he pointed out.

On the other hand, the public prosecutor supported the impugned order and urged the court to dismiss the petition of the accused. After hearing both sides and perusing the material on record and various court judgments, the High Court said that in terms of Section 155 CrPC, the SHO is not authorised to investigate the non-cognizable offences without prior permission of the court.

In the present case, contrary to Section 155 CrPC and also the orders of the Andhra Pradesh police manual, the concerned SHO had registered the FIR on receiving complaint from the police officer and thereafter only sought for permission of the magistrate for investigation. The aforesaid violation is an incurable one in view of the mandatory provision laid down under Section 155 CrPC and also the AP police manual, the judge observed.

As for according permission to investigate the matter, the Court said that the concerned magistrate has not assigned any plausible reasons which prompted him to grant such permission. Besides, the magistrate has not recorded reasons for according permission. In view of the procedural violations, the Court allowed the petition by setting aside the impugned order.

Sending a Report to the Magistrate under Cognizable and Non-Cognizable Offences (Section 158)

A report is sent to the Magistrate which is called the police report. It is sent by the superior police officer, so as to make the Magistrate aware that a particular case is being investigated by a police officer. The main objective of sending a report is to enable the Magistrate to control the investigation and give directions if required under Section 159 of the Code.

The report should be sent to the Magistrate without any delay. In Swati Ram v. State of Rajasthan, it was held that mere delay in sending the report does not throw away the prosecution case in its entirety.

At different stages of an investigation, different reports are to be submitted by the police to the Magistrate. These reports are:

  1. Section 157 of the CrPC requires the officer in charge of the police station to submit a report to the Magistrate, called a preliminary report.
  2. Section 168 of the CrPC requires a subordinate officer to submit a report to the officer in charge of the police station.
  3. Section 173 of the CrPC requires that a final report is to be submitted to the Magistrate as after the investigation gets over.

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