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DIFFERENCE BETWEEN COGNIZABLE AND NON – COGNIZABLE OFFENCES FROM THE PERSPECTIVE OF THE INVESTIGATING POWERS OF THE POLICE

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By Karan Ahluwalia (4th Year Student, GNLU Gandhinagar)

INTRODUCTION

One of the most important classifications of offences in India under the Code of Criminal Procedure, 1973 (“the Code”), is of them being either Cognizable or Non-Cognizable. Cognizable offences are those which are indicated as such under the First Schedule of the Code and in relation to which, the Police are empowered to arrest a person without a warrant. Non-Cognizable offences on the other hand, are of a smaller degree of severity. Their prevention and detection, while important, does not warrant the conferment of sweeping investigative powers upon investigative agencies.

There are two important reasons for this distinction, both of which are rooted in reality:

a. All crimes cannot be prevented, neither can all criminals be apprehended. Therefore, a greater social purpose is served by prosecuting on priority, serious crimes that threaten the very social fabric of society. Crimes such as Sexual offences, Murder, Kidnapping, Sedition etc., all of which are Cognizable.

b. Corruption is endemic amongst ground-level functionaries of the government, an ill to which even investigating agencies are not immune. To prevent vexation of citizens at the hands of these functionaries, conferment of investigative powers in relation to Non-Cognizable offences is made conditional upon fulfilment of certain procedural safeguards that attempt to balance the competing interests of maximization of individual liberty and minimization of crime.

STATUTORY POWERS OF INVESTIGATION

Chapter XII of the Code delineates powers of the Police with respect to investigation of offences. At the outset, §154 of the Code requires Police officers to reduce into writing, all information received by them which discloses the possible commission of a Cognizable offence.

Section 154.  Information in cognizable cases.

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:

Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:

Provided further that-

(a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such persons choice, in the presence of an interpreter or a special educator, as the case may be;

(b) the recording of such information shall be videographed;

(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.

(2) A copy of the information as recorded under sub-section (1)shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

This provision is mandatory- not only does it prevent the Police from conducting any preliminary investigation into the alleged offence before registering a First Information Report (“FIR”), but it also does not require them to be satisfied with the reasonableness and credibility of the information received therein [Lalita Kumari v. Government of Uttar Pradesh, AIR 2014 SC 187]. Once such an FIR is registered, the criminal justice machinery is set into motion and the Police investigate the alleged offence under §156 of the Code. “Investigation” under the Code involves proceeding to the spot of the crime, ascertaining the facts and circumstances of the case, collection of physical evidence, examination of various persons including the accused, discovery and arrest of suspects and formation of an opinion with regard to guilt of the person accused [H.N. Rishbad v. State of Delhi, AIR 1955 SC 196].

On the other hand, when the contents of the information supplied to the Police officer disclose the possible commission of a non-Cognizable offence, §155 of the Code becomes applicable.

Section 155. Information as to non-cognizable cases and investigation of such cases.

(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

It requires the Police officer to note down such information in format as specified for that purpose and present it before a Magistrate who is empowered to try such case or commit it to trial. Investigation into the alleged offence can only be started by the Police once the aforementioned Magistrate has made an order to that effect. It is imperative to note that prior to the making of such order, the Police officer has no power to investigate the offence as has been reiterated by courts on multiple occasions [Rupan Deol Bajaj v. Kanwar Pal Singh Gill, MANU/SC/0080/1996; Sudarshan Manchanda v. State of Karnataka, 1979 SCC OnLine Kar 192; Siddanagouda v. State of Karnataka, MANU/KA/0139/1997]. If the Police officer proceeds to investigate the offence despite this express bar and without an order of the Magistrate to that effect, the investigation conducted would be devoid of legal sanctity for lack of jurisdiction- any charges framed as a result would be liable to be quashed by the concerned High Court [Jugal Kishore v. State, 1972 Cr. L.J. 371]. However, any evidence collected in this ill-advised exercise may still be accepted by a Court if it is shown to be relevant and substantial despite the fact that it was obtained illegally [Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591].

Once an order to investigate the alleged offence has been made by the concerned Magistrate, the Police officer is vested with the same powers of investigation as he/she is in respect to Cognizable offences, save for the power to arrest a person without an order from a Magistrate and without a warrant as provided under §41 of the Code. Such an investigation will proceed as per §156 of the Code, which is also the provision under which investigations are carried out by Police officers suo motu in the case of Cognizable offences. It is also important to note that when the information provided to the Police officer discloses the commission of Cognizable as well as Non-Cognizable offences arising out of the same factual matrix, they are entitled to treat all the Non-Cognizable offences as if they had been Cognizable offences and shall proceed to investigate them forthwith without waiting for an order of the Magistrate in that regard as per sub-section 4 of §155 of the Code.

CASE LAWS

Fundamental jurisprudence on FIRs was laid down by the Hon’ble Apex Court in the landmark case of Lalita Kumari v. Government of Uttar Pradesh (supra). In this case, the Petitioner attempted to lodge an FIR concerning the kidnapping of her daughter which was refused by the local police station. On such refusal she approached the Superintendent of Police, after which an FIR was lodged but no action was taken thereafter. Aggrieved by this situation, the Petitioner filed a Writ Petition under Article 32 of the Constitution of India seeking a Writ of Habeas Corpus or any like relief to secure her daughter. The Hon’ble Court said that principles of democracy and freedom require timely filing of FIRs so that instances of commission of Cognizable as well as non-Cognizable offences come to the notice of the Subordinate Judiciary. If the information provided to the Police officer clearly points towards the commission of a Cognizable offence, the officer has no choice but to register the FIR and proceed with the investigation. However, if on the basis of the information so supplied, it is not clear whether or not the offence complained of is Cognizable or not, then the Police is empowered to conduct a preliminary investigation only for the purpose of ascertaining whether or not the offence is Cognizable. It also re-iterated that if the information received clearly points towards the commission of a cognizable offence, the Police are not required to inquire into the intention of the complainant or the existence of any mala fides since it would be open to the Police to prosecute the complainant in case the information is found to be false.

In H.N. Rishbad v. State of Delhi (supra), proceedings under the Prevention of Corruption Act, 1947 had been instituted against two government employees- these proceedings were quashed by a Special Judge and this quashing was set aside by the Hon’ble Punjab High Court (as it then was). Thereafter this case came before the Hon’ble Apex Court via a Special Leave Petition. The Court laid down the law with regard to investigations into non-Cognizable offences and non-compliance with the mandatory provisions discussed previously. It said that while investigations carried out in breach of a mandatory statutory provisions (such as the requirement of Magisterial orders to investigate Non-Cognizable Offences) would ordinarily be illegal, however- such illegality cannot be allowed to vitiate the validity of the resulting trial unless it can be shown that the defects of the investigation caused a miscarriage of justice. Therefore, if this defect is brought to the notice of the court at a sufficiently-early stage- steps can be taken to rectify the same.

In Sudarshan Manchanda v. State of Karnataka (supra), the transportation godown of the Petitioner caught fire and was attended to by the Karnataka Fire Force as well as the local Police force as per protocol. On reaching the scene of the fire, the Police officer-in-charge was informed by the firefighting staff that the goods stored in the godown were done so in violation of §13 of the Karnataka Fire Force Act, 1964 which made the act a non-cognizable offence. The details of the offence were duly noted and sent to a Magistrate so that investigation could be started into the offence. However, before the requisite permission could be obtained, Police officers from the local Police station arrived at the godown and began their preliminary investigation. An order for the investigation was received by them from the Magistrate only on the following day. The Petitioners in this case assailed the very jurisdiction of the Police to investigate the matter before such permission was obtained and therefore sough non-reliance on the evidence collected as a result. On the other hand, the state contended that since permission was granted for the investigation shortly thereafter, the defect, if any, stood cured. The Hon’ble Karnataka High Court held that an investigation carried out in violation of a mandatory provision of the Code, would be one that was carried out without jurisdiction and subsequent grant of permission by the Magistrate in that regard would not cure the defective investigation.

CONCLUSION

In light of the provisions and jurisprudence discussed previously, we must now revisit an idea expressed in the introduction. The Criminal Justice system in any state is concerned inter alia with the maintenance of a very fine balance between maximization of individual liberty and minimization of crime. In doing so, the same body of criminal law must act both as a shield and as a sword. As a shield it must protect innocent citizens from the excessiveness and potential arbitrariness of state machinery. As a sword it must guide instrumentalities of the state in their pursuit to create social harmony and maintain law and order so that higher goals of collective and individual existence can be realised. §s 154 and 155 of the Code are perfect examples of the same.

Let us first consider the consequences of bestowing untrammelled investigative powers upon investigating agencies. Doing so creates fertile grounds for corruption and consequent vexation of innocent citizens at the hands of anti-social elements both- in the government as well as outside it. Filing poorly-substantiated cases against business competitors, political rivals, contesting family members etc. would become daily occurrence. The law cannot be used to perpetuate injustice, nor can its provisions be perverted to serve narrow, malevolent interests.

It may be argued that since it is open to the Police to prosecute persons who knowingly supply false information to them under §182 of the Indian Penal Code,186- this possible-menace of false-complaints could be curtailed to a large extent. However, ground realities of our criminal justice system would impede any attempts to bring transparency to an otherwise opaque machinery.

This perhaps justifies the differential treatment given Cognizable and Non-Cognizable under the Code. While this results in some measure of the delay in dealing with cases of Non-Cognizable offences, such is the price of our liberty.

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In Criminal Procedure

THE DISCRETION TO ARREST WITH POLICE – A PERSPECTIVE FROM THE EXPERIENCES OF A PRACTISING LAWYER

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The discretion to arrest and put an accused behind bars in an offence which is cognizable and non – bailable, is possibly the most powerful right which the Code of Criminal Procedure, 1973 gives to police officers. The rationale behind giving such power to a police officer is that during the course of investigation, the accused should not interfere with the process of a fair and independent investigation. The custody of the accused with the police also aids the police in reconstructing the crime scene and make recoveries of the material which may have been involved in committing the offence. Furthermore, by way of arrest, the accused is incapacitated from committing any other offence during the period of investigation. However, the question remains as to whether “arrest” is the only way in which the above-mentioned objectives can be attained during the pendency of an investigation, or, should the police trust the alleged accused persons that they shall themselves co – operate in aiding the investigation and not disturb the investigation process by influencing potential witnesses etc.

The reporting of a crime can be done by any person who may or may not be a victim of that crime. If the local police station finds prima facie truth in the allegations of the complainant, an FIR (First Information Report) is lodged. The SHO (Station House Officer) deputes an IO (Investigating Officer) to every FIR who then goes on to investigate the alleged offence under the said FIR. It is this IO who has the power and discretion to arrest the accused who has been alleged of committing the crime. The jurisprudence on the powers and discretion of the IO to arrest the accused has evolved over a period of time.

The experience of the courts, more particularly the Hon`ble Supreme Court has not been very pleasant in so far as the use of this power to arrest by the IOs is concerned. The Hon`ble Supreme Court has time and again deprecated the practice adopted by the police where they make arrests in cases where the offence is either not very heinous or prima facie not made out from the allegations made in the criminal complaint. It cannot be denied that the enormous discretion given to the police officers has also led to massive corruption and abuse of this discretion by the police officers. It is common knowledge that a lot of investigating officers demand bribe / other favors from the accused to not arrest them post the lodging of the FIR. Interestingly, it is again known to everyone that many investigating officers also demand bribe/other favors from the complainant to make an arrest of the alleged accused. This is especially common in white collar crimes like cheating, forgery, criminal breach of trust etc. wherein the complainant is confident that an arrest of the accused will lead to a settlement of the matter between the parties thereby providing the complainant with the money/articles/goods which has been alleged to have been cheated or siphoned off by the accused.

COGNIZABLE OFFENCES CARRYING SEVEN OR LESS THAN SEVEN YEARS OF IMPRISONMENT

Section 41 of the Code of Criminal Procedure, 1973 is the principal section which governs the powers of the police officer to make an arrest of an accused person wherein the allegation is that a cognizable has been committed by the accused person. Section 41(1)(a) as amended in 2009 provides that any police officer may make an arrest without a warrant if the accused has committed a cognizable offence in the presence of a police officer. Whether or not an offence is cognizable or non – cognizable can be easily discerned by any person from Schedule I annexed to the Code of Criminal Procedure, 1973. Section 41(1)(b) is bifurcated into two parts i.e. arrests made in cases where the alleged cognizable offence carries seven or less than seven years of imprisonment and arrests made in cases where the alleged cognizable offence carries more than seven years of imprisonment. Through the 2009 amendment, the legislature has circumscribed the discretion of the investigating officers to make arrests in cases where the alleged cognizable offence carries seven or less than seven years of imprisonment. Section 41(1)(b) clearly provides that in such cases where the cognizable offence carries seven or less than seven years of imprisonment, a police officer can make an arrest without warrant only if the following conditions are satisfied:

(i) the police officer has “reason to believe” on the basis of such complaint/information that such person has committed the said offence

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured.

The police officer is also mandated under law to write his reasons in the case diary as to why he/she feels that the above-mentioned criterions are being fulfilled in the case and hence arrest is being effected. Furthermore, Section 41A provides that in all cases where the police officer has after applying the criterions prescribed under Section 41(1)(b) decided that the arrest is not required, he/ she shall issue notice of appearance under Section 41A to the accused so that the accused can join the investigation and provide answers to the questions raised by the police officer.

My experience in handling criminal investigations on behalf of the accused in the past nine years tells me that rarely are the above-mentioned criterions prescribed under Section 41(1)(b) are followed in cases where the alleged offence carries a punishment of less than seven years. It is important to be noted that Section 41(1)(b) merely circumscribes the discretion of the police officer in arresting the accused for alleged cognizable offences which carry a punishment of seven or less than seven years. The discretion while circumscribed and guided through this provision does not completely take away the powers of the police officer to arrest an accused under this category of cases. The Supreme Court and other High Courts of our country have time and again reminded the investigating officers and police force of our country to apply their mind before making arrests in offences which carry a sentence of seven or less than seven years [See Arnesh Kumar v. State of Bihar, Criminal Appeal No. 1277 of 2014 (Supreme Court); Rajesh Sharma v. State of UP, AIR 2007 SC 3869]. But, from a more practical perspective, any practicing criminal lawyer of our country would confirm that the investigating officer rarely follows the mandate of Section 41(1)(b) in a meticulous manner.

The power/discretion to arrest or not to arrest as provided by the Code of Criminal Procedure, 1973 has often resulted in its abuse by the police officer. Arrest in India or for that matter any society across the world carries with it extremely strong prejudice and stigma. Even a single day of arrest can potentially demoralize and stigmatize a respectable individual of our society for his / her entire life. Hence, this power which lies with the investigating officers is expected to be used with utmost caution and by following the mandate of the law in the strictest sense. The criminal justice system in India is far from being ideal today in the present situation as it exists in 2021. Time and again it is seen by the stakeholders of the criminal justice system that the police officers abuse this discretion by taking bribe/favors from the complainant or the accused. The higher the stakes involved under the lodged FIR, the higher would be the involved corruption. The alleged accused also wants to indulge in the act of corruption because he / she feels that if they get arrested then they will be going through the ordeal of being in prison and also would have to eventually pay up to the defence lawyers for securing a bail for them. Hence, simply bribing the police officer and preventing any possible arrest may end up being a more feasible option. It will be important for me to caveat here that while abuse of arrest powers by police officers is common, there are independent and honest police officers who conduct absolutely neutral and impartial investigation on the basis of the merits of the case.

COGNIZABLE OFFENCES CARRYING MORE THAN SEVEN YEARS OF IMPRISONMENT

Section 41(ba) of the Code of Criminal Procedure, 1973 applies to all cases where the alleged offence carries more than seven years of imprisonment. This provision is much less complicated and fairly straightforward as it provides relatively less discretion to the investigating officer while making arrests in cognizable offences which carry more than seven years of imprisonment. The provision does not provide too many yardsticks on the basis of which an investigating officer can evaluate whether or not to make an arrest.

This provision simply says that any police officer may make an arrest where the police officer has received credible information that the accused has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years and the police officer has reason to believe on the basis of that information that such person has committed the said offence. Hence, a bare perusal of the provision shall highlight that once the police officer is convinced on a prima facie basis that the accused has committed the offence, the police officer will be well within his/her rights to make an arrest of the accused. Having said this, it is most definitely not a matter of practice that in

all cases where the alleged cognizable offence carries more than seven years of sentence would the police officer arrest the accused. The police officer in a lot of cases refuses to exercise its power to arrest (and rightfully so) when he / she feels that the criminal complaint on the basis of which the FIR is lodged is false and devoid of merits. Furthermore, in cases like recovery of money, alleged forgery, alleged cheating etc. where the dispute has a civil flavor, the police officers are careful before making any arrests even while the offences may carry a sentence of more than seven years. Needless to mention, that since this provision also provides discretion to the police officers, it has been time and again misused for securing illegal favors / bribe by the police officers.

The law regulating arrests is still in developing stages in India. There is a lot more that needs to be done in order to ensure that no wrongful arrests may take place or no alleged accused may go without being arrested simply because of the whims and fancies of the police officers. The situation can improve in 2 ways. Firstly, the police officers should start applying the mandate of law in a stricter manner wherein they actually adhere to the check list provided under Section 41(1)(b) before making an arrest in all cases where the offence carries a sentence of seven or less than seven years. Secondly, the legislature or the Hon`ble Supreme Court may prescribe certain cases (of less heinous nature) where the discretion is completely removed thereby giving certainty to citizens of our country and reducing the powers of police officers. Any change made in the law would have to examined while keeping in mind the delicate balance between providing right of personal liberty to individuals and right of life in a peaceful and crime free society of the public at large.

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