Procedure done by police in investigating cognizable and non

cognizable offences

All the offences given under the IPC are not the same, and so is
the procedure of investigation and trial. On the basis of the nature,
gravity, and seriousness of the offence committed, it can be classified
as:

• Cognizable and non-cognizable offences

• Bailable and non-bailable offences
• Compoundable and non-compoundable offences

Cognizable offences - Section 2(c) of the Criminal Procedure Code

(1973)

According to the definition, offences are those where the police

are empowered to make an arrest of the accused without a warrant or
permission from the magistrate.
These offences are more serious and heinous.
This classification of offences and whether a particular offence
falls under the category of cognizable offence or not is given under the
First Schedule of the Code.
Examples of such offences are rape, murder, abduction, theft,
kidnapping, etc. These offences create a threat to society and disturb
the peace and harmony therein.
The punishment in such offences is usually more than 3 years
and may extend up to life imprisonment or death. However, these
offences may either be bailable or not, which also depends on the
discretion of the court. The first schedule in the Code also mentions
whether the particular offence is bailable or not.

procedure In cognizable off

• F.I.R.
F.I.R. means the information, given to the police that a 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.

• 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.

• 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, and ascertain the facts and
circumstances of the case.

For heinous offences, no time limit has been prescribed specifically by

Section 468 of Cr.P.C. for the completion of the investigation but one
can always approach the Supreme Court for unreasonable delay
under Article 21 which is the Right to Freedom as provided by the
Indian Constitution.

• Search and Production of Documents

If the Police believes that some search has to be made during the
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 to the case.

• Arrest

Arrest refers to a physical restraint put on a person as a result of an

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 making of an accusation that is so dangerous or serious in
nature that it cannot be avoided. Within 24 hours of the arrest, the
Police have to acquire an arrest warrant for the person in custody.
Within 24 hours, the Police have all the time to investigate the offence
and question the person.

• Remand
When the Police arrest 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 a further period otherwise the accused
has to be released. The request of remand can be granted for not more
than 14 days under police custody.

• 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.

• Medical Examination

In case of rape and molestation or any such crime where the medical
examination is necessary, it’s the duty of the police officer to get it
conducted within 24 hours of the offence being reported.

• 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 the investigation etc.

• 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.

• Trial

The hallmark of trial is that every witness who gives evidence will now
give the same evidence in court binded by an oath. The 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.

• Judgment

The judgment contains the points for determination, the decision on

those points and reasons for the same by considering the examination,
and cross-examination of the accused and the witnesses.k

• Punishment

In Cognizable cases, the punishment period is usually more than 3

years going up to life imprisonment or the death penalty as they are
serious and heinous in nature.

Very important case - DK Basu v. State of West Bengal (1996)

Facts of the case

In this case, a letter written by DK Basu, Executive Chairman of Legal

Aid Services, West Bengal, was considered to be a writ petition. The
letter addressed to the Supreme Court mentioned several custodial
deaths happening in jails due to arrests made by the police.

Issues in the case

Whether there must be some guidelines with respect to the arrests of

the accused and their detention in jails?

Judgement of the court

The Supreme Court in this case addressed the issue and gave
guidelines for arrest which must be followed whenever any arrest is
made out by the police in cognizable offences. These are:

• The officers making the arrest must wear precise, visible, and
clear identification labels with their designations imprinted
on it.
 • They must prepare a memorandum of arrest that must be
attested by at least one witness, who may be a family
member of the person arrested or any person present during
the arrest. This must be signed by the arrested person and
shall contain the time and date of the arrest.
• The family members or friends of the person arrested must be
informed about his arrest, along with the time and place of
the arrest.
• A proper case diary must be maintained in this regard.
• They must also maintain an inspection memo, which must be
signed by the person arrested and the police officer making
the arrest. A copy of the inspection memo must be given to
the person arrested.
• The person arrested must undergo a medical examination
after every 48 hours that he spends in jail.
• All the necessary documents, along with the case diary and
memo, must be sent to the magistrate for his reference.

Latest case – XYZ v. State of Madhya Pradesh (2022)

Facts of the case

In this case, a woman wanted to complain about the Vice-Chancellor

of the institute where she was working for harassment but was denied
by police. She filed a complaint with the Superintendent of Police but
no action was taken. As a result, she decided to file a complaint with
the Judicial Magistrate First Class. The magistrate, after receiving the
complaint, ordered the police to conduct an investigation. However,
the proceedings were delayed due to the Covid-19 pandemic. At the
onset of proceedings, the Magistrate allowed the complainant to
examine the witnesses, who were questioned by the appellant. The
High Court rejected his application on the ground that it was not
mandatory for the Magistrate to order an investigation.

Issues involved in the case

Whether the Judicial Magistrate First Class is under an obligation to

order an investigation under Section 156 of the Crpc.

Judgement of the Court

The Supreme Court in this case held that a magistrate is only under
an obligation to order an investigation if, prima facie, it is shown that
the offence committed is cognizable in nature. It was observed that the
word ‘may’ used in the Section gives the magistrate discretionary
power, wherein it is not mandatory to order an investigation. He is
entitled to order an investigation only when a cognizable offence is
committed. The Supreme Court also observed that the decision by the
High Court that it is not obligatory for a magistrate to order an
investigation was correct.

Procedure in non cognizable

non-cognizable offences are not as serious and are defined

under Section 2(l) of CrPC. Police cannot arrest an accused in such
cases without a warrant. They need permission from the court to
make an arrest in such cases. Examples of such offences are assault,
cheating, forgery, etc.
Section 155 states that the police don’t have any legal authority
to record an FIR (First Information Report) regarding any non
cognizable offence, unless they have obtained permission from the
magistrate for it.

As per Section 159 of the Code, the magistrate can decide whether
he/she wants the police to proceed with an investigation or not.
Further, they can also issue directives for carrying out the
investigation.

All non-cognizable offences as well as their punishments have been

defined in the IPC, 1860. These offences are provided in the First
Schedule of this code.

Procedure to be followed for a

non-cognizable offence
The entire procedure for a non-cognizable offence is quite different
from the procedure to be followed in the case of a cognizable offence.
There are several steps involved, which are as follows.

1. The police as stated earlier, don’t have the power to record a

First Information Report. They can only take action when they
are ordered by the magistrate to do the same.
 2. A complaint is to be directly filed with a judicial magistrate.
When the police receives an order from the magistrate, they
are required to investigate the matter and obtain more
information.
3. While carrying out the investigation, the police are required to
prepare several reports. These reports are further submitted
to the magistrate.
4. The officer in charge of the police station is required to submit
a preliminary report to the judicial magistrate as per Section
157 of the Code of Criminal Procedure, 1973.
5. Under Section 168 of this Code, the junior officer is required
to submit a report to the officer in charge of the police station
for the purpose of investigation.
6. At the end of the investigation, a final report is required to be
sent to the concerned magistrate as per Section 173 of the
Code.
7. On the basis of the investigation reports and trial conducted
at later stages, a magistrate can order the police to issue an
arrest warrant.
8. It is only when a person has been convicted in a trial that an
arrest warrant can be issued by the police and they can arrest
the convict. However, the convict has the right to apply for
bail and could also appeal against the decision of the trial
court.
Hence, it can be concluded that a convict is certainly not deprived of
his/her basic right to a fair trial for committing such offences. This is
the entire procedure that is required to be followed in the case of a
non-cognizable offence.

Om Prakash and Anr v. Union of India

(2011)

Facts
In this case, a petition had been filed when the Central Excise Act was
introduced in 1944, which provided for certain offences to be non
cognizable. One of the learned counsel filed a petition that the
provisions were arbitrary and needless at times. Further, there was
ambiguity regarding whether the offences should be bailable or non
bailable.
 Issues before the Court
The issue before the Court was whether the offences under the Act are
cognizable or non-cognizable and whether they should be bailable in
nature.

Judgement
In this given case, the Court interpreted the powers of the police in
case of non-cognizable offences. They stated that a police officer, or in
the instant case, the excise officer, can’t arrest any individual without
a valid arrest warrant. The same provision is stated in Section 41 of
the Code of Criminal Procedure, 1973 which gives the various
conditions under which the police can arrest a person with or without a
warrant.

Difference between cognizable and non-cognizable cases

Point of Cognizable offence Non-cognizable offence

difference

Meaning Offences for which the police are Offences for which the police
empowered to make an arrest cannot make an arrest
without a warrant or prior without the prior permission
permission of the court are known of the court are known as
as cognizable offences. non-cognizable offences.

Provision Section 2(c) of CrPC. Section 2(l) CrPC.

Procedure of The procedure for investigating The procedure of

investigation cognizable offences is given under investigation in such cases is
Section 156, CrPC. given under Section 155,
CrPC.
Powers of The police are empowered to make The police cannot initiate the
police officers an arrest without a warrant and investigation until they
start the investigation as soon as receive orders from the
an FIR is lodged, without any magistrate to do so.
permission from the magistrate.
Arrest The accused can be arrested Requires prior permission
without a warrant and permission from the court.
of the court.

Gravity of Offences committed are heinous Such offences are less serious
crime and serious as compared to and grave in nature.
noncognizable offences.

Quantum of Punishment in such offences is Punishmentis usually

punishment more than 3 years and may extend less than 3 years.
to life imprisonment or the death
penalty.

Bail of accused Cognizable offences may either be Non-cognizable offences are

bailable or non-bailable depending bailable due to less severity.
upon the nature of offence and the
discretion of the court.

Examples Murder, rape, kidnapping, Assault, cheating,

abduction, etc. defamation, etc.