In India, Criminal Investigation For Trial starts with how and what happens once a crime takes place and how the investigation machinery leads the investigation under Cr.P.C and ultimately rests its case before the Judiciary in order to give the accused a chance of fair trial and to prove his innocence for the crime taken place.

Investigation – For investigation to kick start, there should be some crime, any act which is punishable under the Indian Penal Code or any other legal statute as passed by the Indian Parliament shall be termed as Crime.

Crime – For any investigation to begin ,crime has to be committed. Crime/offence can be a cognizable crime i.e Bailable or Non- Cognizable crime i.e. Non-bailable in nature. Indian Penal Code divided the types of Crimes/offences in several chapters. The classification of an offence so as to whether it is a cognizable offence, non-cognizable offence, bailable or non- bailable and compoundable or non-compoundable – is listed in the First Schedule.

Offence – An illegal act or crime that is punishable in nature and against which a complaint can be registered with police or magistrate etc. An offence can be classified as a cognizable offence and non-cognizable offence.

COGNIZABLE AND NON-COGNIZABLE OFFENCE

The Criminal Procedure Code was brought into existence to provide for a 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 right to bail, on the basis of type of trial and on the basis of right to compromise. 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, investigation of offences without the permission of the court.

The cognizance of an offence depends upon its seriousness. Seriousness of 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.

COGNIZABLE OFFENCES

Cognizable offences have been defined in section 2( c) of the Criminal Procedure Code, 1973 , as an offence/case where a police officer is empowered to arrest without warrant, according to first schedule of Criminal Procedure Code, 1973 or under any other law for the time being force.

Cognizable offences are always serious in nature –

  • Section 121: Waging war against the Government of India
  • Section 124: Assaulting the President of India or the Governor of a State, with intent to compel or restrain the exercise of any lawful power
  • Section 302: Murder
  • Section 304: Culpable homicide not amounting to murder
  • Section 304-A: Causing death by rash or negligent act
  • Section 304-B: Causing dowry death
  • Section 379: Theft
  • Section 384: Extortion.

According to section 154 of CrPC, 1973, if there is cognizable offence the Police officer has to receive the F.I.R ( First Information Report) relating to cognizable offences.

NON COGNIZABLE OFFENCES 

Section 2 (l) Code of Criminal Procedure, 1973, defines non- cognizable offence as any offence in which a police officer is ripped off the authority to execute an arrest without a warrant.
Non-Cognizable offenses are not much serious in nature.

Example-

  • Section 168: Public officer unlawfully engaging in any trade
  • Section 172: Absconding to avoid service of summons
  • Section 177: Knowingly furnishing false information to a public servant
  • Section 186: Obstructing a public servant in discharge of his public functions
  • Section 278: Making atmosphere obnoxious to health
  • Section 494-A: Keeping a lottery office
  • Section 426: Mischief
  • Section 477-A: Falsification of accounts.

It has been provided in section 155 of Cr.PC , 1973 that in non-cognizable offence case a Police Officer cannot register an F.I.R without the permission of Magistrate

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 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 cognizable offence. Under these provisions, the police is empowered to register complaint even on an information which raises 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 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 an 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 offence is punishable with less than three years, there is practically no enforcement of 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 police officer in performing his duties
  5. Desertion of the Armed forces of the Union, etc.

Depending on the severity of the crime, cognizable offences are either bailable or non-bailable in nature, whereas non-cognizable offences are bailable offences. The punishment for non-cognizable offences is imprisonment for less than three years or sometimes fine only, whereas cognizable offences attract punishment with imprisonment for three years or more. Although the classification has been done 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

 

 

References :-

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http://www.beingyourlawyer.com

[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.)