Cognizable and Non Cognizable Offences

The classification of offences as cognizable or non-cognizable is the primary procedural classification under the BNSS. It determines whether police can act without judicial authorization or must obtain Magistrate's permission before proceeding.

Legal Framework

Why: This classification balances two competing interests: (1) the State's duty to prevent and detect crime promptly, and (2) the citizen's right against arbitrary police action. Serious offences require immediate police response; minor offences require judicial oversight before police intervention.

Cognizable Offences

A cognizable offence (S.2(1)(g) BNSS) is one for which a police officer may arrest without warrant in accordance with the First Schedule or any other law.

Consequences of cognizable classification:

Procedure upon receiving information (S.173):

1. Police officer records information in writing (or electronically)
2. Information read over to the informant and signed
3. Copy of FIR given to informant free of cost
4. Zero FIR: registration at any police station irrespective of jurisdiction
5. Information of registered FIR forwarded to Magistrate forthwith
6. Information may also be given by electronic communication; it is taken on record when signed by the informant within three days (S.173(1)(ii))
7. For a cognizable offence punishable with three years or more but less than seven years, the officer may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, hold a preliminary enquiry to be completed within fourteen days (S.173(3), new)
8. If the officer refuses to record the information, the informant may send its substance in writing by post to the Superintendent of Police, and failing that apply to the Magistrate (S.173(4))

Non-Cognizable Offences

A non-cognizable offence (S.2(1)(o) BNSS) is one for which a police officer has no authority to arrest without warrant.

Consequences of non-cognizable classification:

Procedure upon receiving information (S.174):

1. Police officer records substance in a prescribed book (NCR)
2. Refers the complainant to the Magistrate, and forwards the daily diary report of all such cases to the Magistrate fortnightly (S.174(1)(ii), new)
3. No investigation without Magistrate's written order under S.174(2) BNSS
4. If Magistrate orders investigation, police may exercise the same powers as in a cognizable case, except the power to arrest without warrant (S.174(3))
5. An investigation of a non-cognizable offence without the Magistrate's order is illegal, and a report filed on it cannot found cognizance as a police report (Keshav Lal Thakur v State of Bihar, 1996)

Mixed Cases (S.174(4))

Where a case relates to two or more offences of which at least one is cognizable, the whole case is deemed to be a cognizable case, even though the other offences are non-cognizable. The police can therefore investigate all the offences without a Magistrate's order. This sub-section was added to the CrPC, 1973 as S.155(4) by amendment in 1980 and continues in the BNSS.

Determination of Classification

The First Schedule to the BNSS classifies every offence under the Bharatiya Nyaya Sanhita (BNS) and other laws as:

1. Cognizable or non-cognizable
2. Bailable or non-bailable
3. Triable by which court
4. Compoundable or non-compoundable

Why: Classification by schedule (not by judicial discretion) ensures uniformity. Police in every station apply the same rules regardless of the gravity assessment of individual officers.

Illustrations

1. Midnight car theft (cognizable): At midnight, Ankit's car is stolen from outside his house. He calls the police. Because theft is cognizable, the constable immediately records his FIR under S.173 BNSS and begins looking for the car. No need to wait for a Magistrate's order at midnight. The system prioritises immediate response for serious crimes.

2. Loud music complaint (non-cognizable): Ankit's neighbour plays loud music at a party (public nuisance under a local act, non-cognizable). Ankit calls the police, but they say "Sir, we cannot act on this directly. Please file a complaint with the Magistrate tomorrow." Under S.174 BNSS, police record an NCR and refer Ankit to the Magistrate. The system requires judicial oversight before police intervene in minor matters.

3. Contrast: Same person (Ankit), same police station, same night. The difference is entirely in the First Schedule classification. Stolen car = immediate police action justified. Loud music = go through a Magistrate first. The classification, not police discretion, determines the procedural pathway.

Compounding of Offences (S.359)

Compounding is the settlement of an offence by the victim with the accused, which ends the prosecution. It is distinct from cognizability: some cognizable offences are compoundable and some non-cognizable ones are not.

Quashing on settlement is different: The High Court's inherent power under S.528 BNSS (formerly S.482 CrPC) to quash proceedings after a settlement is distinct from compounding (Gian Singh v State of Punjab, 2012). It can extend to non-compoundable offences with a predominantly civil flavour, but not to heinous offences such as murder, rape or dacoity.

Old Law to New Law

• Definitions: S.2(c) and S.2(l) CrPC, 1973 are now S.2(1)(g) and S.2(1)(o) BNSS, with the same wording.
• FIR: S.154 CrPC is now S.173 BNSS. New features: Zero FIR (information irrespective of the area), electronic information signed within three days, and a preliminary enquiry of up to fourteen days for offences punishable with three to seven years (S.173(3)).
• Non-cognizable cases: S.155 CrPC is now S.174 BNSS. New: the police must forward the daily diary report of non-cognizable cases to the Magistrate fortnightly (S.174(1)(ii)).
• Compounding: S.320 CrPC is now S.359 BNSS.

Requirements

To classify an offence and decide the police response, check:

• Schedule entry: Is the offence shown as cognizable in the First Schedule, or under the special law that creates it?
• Mixed case: Does the case include at least one cognizable offence (S.174(4))? If so, the whole case is cognizable.
• Information: If cognizable, has the information been recorded as an FIR (S.173(1); Lalita Kumari)? Is this a three to seven year offence where a preliminary enquiry is allowed (S.173(3))?
• Non-cognizable: Has the substance been entered and the informant referred to the Magistrate (S.174(1))?
• Magistrate's order: Has a Magistrate with power to try or commit the case ordered investigation (S.174(2))? Without it, investigation is illegal.
• Arrest: Even with an order, arrest in a non-cognizable case needs a warrant (S.174(3)).
• Compounding: Is the offence in S.359(1) or S.359(2), and is permission needed?

Illustrations

4. Mixed case: X slaps Y (voluntarily causing hurt, non-cognizable) and steals his phone (theft, cognizable). Under S.174(4) the whole case is cognizable, so the police may register an FIR and investigate both offences without a Magistrate's order.

5. Investigation without order: The police register an FIR for an offence under S.31 of the Representation of the People Act, 1950, which is non-cognizable, and file a charge-sheet without any Magistrate's order under S.174(2). The investigation and the report are illegal (Keshav Lal Thakur v State of Bihar, 1996).

6. Compounding: A is prosecuted for simple hurt, which is compoundable by the person hurt. B, the victim, settles with A. The compounding operates as an acquittal (S.359(8)). If B had died before settling, his legal representative could compound with the consent of the court (S.359(4)(b)).

Key Cases

Lalita Kumari v Government of Uttar Pradesh (2014) Lalita Kumari v State of UP 2014
Issue: Whether registration of FIR is mandatory upon receiving information of a cognizable offence.
Rule: S.154 CrPC (now S.173 BNSS) uses the word "shall"; FIR registration is mandatory, not discretionary.
Held: If information discloses commission of a cognizable offence, FIR must be registered. Preliminary inquiry (7 days maximum) is permissible only where information does not clearly disclose a cognizable offence.

State of Haryana v Bhajan Lal (1992) State of Haryana v Bhajan Lal 1992
Issue: When can FIR/investigation in a cognizable case be quashed?
Rule: High Court under S.482 CrPC (now S.528 BNSS) can quash FIR where allegations do not prima facie constitute any offence.
Held: Seven categories enumerated where FIR/proceedings can be quashed, including where allegations are absurd and improbable, or the offence alleged is non-cognizable.

Keshav Lal Thakur v State of Bihar (1996) Keshav Lal Thakur v State of Bihar 1996

• Facts: The police registered a case and investigated an offence under S.31 of the Representation of the People Act, 1950, which is non-cognizable, without any order of a Magistrate.
• Held: The police could not register a case for a non-cognizable offence under S.154 CrPC, and could investigate it only on a Magistrate's order under S.155(2). No such order was passed, so neither the investigation nor the report on which cognizance was taken was valid.
• Principle: Investigation of a non-cognizable offence without a Magistrate's order is illegal.

Gian Singh v State of Punjab (2012) Gian Singh v State of Punjab 2012

• Facts: A three-judge Bench considered whether the High Court may quash criminal proceedings in non-compoundable offences where the offender and the victim have settled.
• Held: Compounding under S.320 CrPC and quashing under S.482 CrPC are materially different. The High Court may quash on settlement where the dispute has a predominantly civil flavour, such as commercial, financial or matrimonial disputes, but not in heinous and serious offences such as murder, rape or dacoity, or offences by public servants in that capacity.
• Principle: Settlement and compounding are not interchangeable; the High Court's inherent power is guided by the nature and gravity of the offence.

Distinctions

Criticism and Debate

• Classification by schedule, not gravity: Cognizability turns on the First Schedule, not on the facts. Some serious economic offences remain non-cognizable, so victims must go to a Magistrate first, while minor cognizable offences invite arrest without warrant.
• Preliminary enquiry under S.173(3): The BNSS allows a fourteen-day enquiry before an FIR for offences punishable with three to seven years. Critics say this dilutes Lalita Kumari, which made registration mandatory where a cognizable offence is disclosed; supporters say it filters false complaints. The permission of a Deputy Superintendent of Police is required.
• Non-cognizable complaints are neglected: In practice an NCR is often the end of the matter. The fortnightly forwarding of the diary report under S.174(1)(ii) is meant to give the Magistrate oversight.
• Compounding lists are narrow: Because S.359(9) bars compounding outside the lists, settled disputes in non-compoundable offences must go to the High Court under S.528, which adds cost and delay.

Essay Outline

1. Introduction: Classification as the gateway to police powers.
2. Definitions: S.2(1)(g) and S.2(1)(o); the First Schedule.
3. Cognizable cases: S.173 FIR, Zero FIR, S.173(3) preliminary enquiry; Lalita Kumari.
4. Non-cognizable cases: S.174(1) to (3); Keshav Lal Thakur.
5. Mixed cases: S.174(4).
6. Quashing: Bhajan Lal categories.
7. Compounding: S.359; Gian Singh.
8. Critique and conclusion.

Recall Check

1. What is the police officer's duty upon receiving information of a cognizable offence?
2. Under which section must a Magistrate's order be obtained for investigating non-cognizable offences?
3. What is the significance of the First Schedule in determining cognizability?
4. What does S.174(4) BNSS provide for a case with both cognizable and non-cognizable offences?
5. What is the effect of investigating a non-cognizable offence without a Magistrate's order?
6. How does compounding under S.359 differ from quashing under S.528?

Flashcards