When can a police officer arrest any person? Is it their own sweet will to decide whether to arrest a person or conduct search in private homes? NO!!
The process followed by the authorities in criminal matters has been provided in detail in the Code of Criminal Procedure (CrPC), 1973. The provisions in Indian Penal Code (IPC) specify what constitutes an offence and its corresponding punishment. The CrPC classifies offences as per gravity of the act committed, and thus, the procedure to be followed.
The difference between criminal law and civil law is that in civil matters, parties usually have to bring the relevant evidence on their own to prove their case unless court’s interference is required. In criminal matters, especially the serious offences, it comes over the state authorities as a duty to investigate, collect evidence, bring the same in the knowledge of the court and proceed through prosecution lawyer. Since Police officials have to collect the relevant evidence before the same is tempered or perished, keeping such places beyond the reach of the accused becomes necessary. But not every crime gives the right to Police officials to start investigating and arrest anyone they deem to be related to the offence. Some offences are regarded as cognizable and the others are non-cognizable. Clarification on difference of the two terms has been attempted in the blog below.
What are Cognizable Offences?
Cognizance can be understood as application of mind. When facts of the matter itself depict commitment of a serious offence, which has a deterring effect on the society, such matters are serious. The list of cognizable offence contains such acts which are serious in nature and are punishable with either death penalty, life imprisonent, or imprisonment with a term not less than 3 years.
Cognizable offence examples include dacoity, murder, rape, etc. Reading such words runs a chill through the spine for an ordinary person. In such cases, information to the Police officers is enough to activate the criminal justice system. The Police are bound to register a First Information Report (FIR) under section 154 of the Criminal Procedure Code, 1973.
When a cognizable offence is reported to the Police, they do not need Magistrate’s or court’s permission to proceed. The matter is recorded in the general diary of the police station and investigation may be initiated right away, without any warrant. In such cases, it is not Police officials’ right but duty as per CrPC to start investigating on the matter. Even if the matter is grave in nature and a complaint in CBI is required, still it is initiated through local Police.
Find out How to file a police complaint?
What are Non-Cognizable Offences?
Not every criminal offence is apprehending and serious in nature. For example, when you are dealing with someone in business, while the other side was not actually a business organisation but a fake group of offenders looting people under the garb of such business. If you are cheated in the course of such business transactions, it is a matter of breach of trust, financial loss, etc. Hence, it is a private crime against the victim. The punishment for this act will be less as compared to a dacoity whereby someone’s life was at stake.
In such cases, Police officials are not authorised to initiate investigation and arrest the person against whom the victim complains of cheating, unless the permission is granted by concerned Magistrate.
If someone initiates through an FIR in non cognizable offence, the Police can reject the request and may direct the complainant to approach the Magistrate. In such cases, criminal lawyers should be approached to understand the process followed. Police initiating investigation on its own for an offence which is non cognizable is against the law.
How to Distinguish Between Cognizable and Non-Cognizable Offences?
Understanding the difference between various categories of offences is important. If you are an ordinary person who witnessed a crime, the knowledge will lead the way to complaint to the appropriate authorities. If you are a law student, it will help understand the various concepts of criminal laws in India. However, if you are a criminal lawyer in Kolkata or any other Indian city, who just started with litigation, knowing such concepts is paramount. The table below gives a glimpse of theoretical and procedural differences between offences whose cognizance is authorised to police and otherwise.
Differences Between Cognizable and Non-Cognizable Offence
|
Particulars |
Cognizable Offence |
Non-Cognizable Offence |
|
Definition |
As per section 2(c) of the Code of Criminal Procedure (CrPC), 1973, “cognizable offence” means an offence for which a Police officer may arrest without warrant in accordance with the First Schedule or under any other law for the time being in force. |
As per section 2 (l) of CrPC, “non-cognizable offence” means an offence for which, a Police officer has no authority to arrest without a warrant. |
|
Nature |
Criminal and serious. |
Criminal but not so serious. |
|
Examples |
Murder, rape, kidnapping, theft. |
Public nuisance, defamation, simple assault. |
|
FIR Registration |
Can be reported directly to the police in the form of an FIR. If the Police refuse to register an FIR, a complaint can be lodged with the Magistrate as well. |
Police officials are not legally bound to register a complaint for non-cognizable offences. Hence, a criminal complaint has to be registered with the Magistrate. |
|
Investigation |
Police do not require approval from the court for the purpose of commencing an investigation. |
In order to start investigating a matter, the Police require prior approval from a court of appropriate jurisdiction. |
|
Custody and Remand |
The accused can be remanded into police custody for investigation. This means that the police have the authority to detain and interrogate the accused for a specified period, typically up to 15 days with magistrate approval. |
The accused is not remanded into police custody. Instead, the custody and any necessary interrogation are handled by the court. |
|
Preventive Actions |
Police can take preventive actions under Sections 149-153 of the CrPC. |
Police cannot take preventive actions without a magistrate's order. |
|
Warrant |
Not necessary for Police to conduct searches or arrests. |
A warrant issued by a Magistrate is required by the Police before proceeding with the arrest or search of any premises. |
|
Arrest |
Police have the power of arrest without a warrant. |
Police cannot arrest without a warrant; a court's permission is required. |
|
Bail |
Usually non-bailable offences, requiring judicial determination for bail. |
Usually bailable. |
|
Compounding of Offence |
Generally non-compoundable, meaning the complainant cannot withdraw charges against the accused. |
Generally compoundable, meaning the complainant can withdraw charges with or without the court's permission. |
|
Settlement |
No provision for compromise between the parties involved. |
Parties involved can settle the matter through compromise. |
|
Prosecution |
These are wrongs against the state, and against the public at large. Hence, prosecution is taken care of by the state, i.e. the government |
These are private offences against another person. Hence, prosecution has to be initiated by the victims themselves |
|
Punishment |
Punishable by the death penalty, life imprisonment or imprisonment for a term of more than 3 years. |
Punishable with imprisonment of a term of less than 3 years. |
List of Cognizable and Non-Cognizable Offence
The first schedule to Criminal Procedure Code, 1973 contains classification of offences based on their nature and procedure to be followed. The schedule categorises and specifies the offences based on their sections, punishment, which court can take the cognizance, whether it is bailable or non-bailable, and non-cognizable or cognizable.
Click here to access the cognizable and non cognizable offence section and other details as contained in the.
FAQs
-
What is an example of a cognizable offence?
Examples of cognizable offences include murder, rape, theft, cybercrime, terrorism, counterfeiting, narcotic drug offences.
-
Is a cognizable offence bailable or not?
A cognizable offence can be bailable or non-bailable, depending on the specific provisions of the law and the severity of the offence. For eg. theft or forgery are generally bailable but murder or rape are not.
-
Is FIR registered for non-cognizable offence?
No, an FIR (First Information Report) is not registered for non-cognizable offences. If the complainant insists on pursuing the matter further, the police can initiate an investigation by filing a Non-Cognizable Report (NCR) in the court, which is then treated as a complaint.
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