The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-I]

Q.1 What is a “cognizable offence” and a “cognizable case”?

Ans. Section 2 (c) Cr.P.C defines both the above expressions as follows:-

“2 (c) – “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant”.

Part-I of the First Schedule to Cr.P.C shows the offences which are punishable under the Indian Penal Code (IPC). Part-II deals with offences under “other laws”. Column-4 of the First Schedule shows whether the offences are “cognizable” or “non-cognizable”.

Cognizable case – Section 155 (4) Cr.P.C further explains the expression “cognizable case” as follows:-

“(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”.

Q.2 What is a “non-cognizable offence” and “non-cognizable case”?

Ans. Section 2 (l) Cr.P.C defines both the above expressions as follows:-

“2 (l) – “non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which a police officer has no authority to arrest without warrant”.

Part – I of the First Schedule to Cr.P.C shows the offences which are punishable under the IPC. Column – 4 of the First Schedule shows whether the offences are “cognizable” or “non-cognizable”.

Q.3 What are the options available to a person who wants to give “information” regarding the commission of an offence ?

Ans. He may either approach the “officer-in-charge of a Police Station” (SHO) or a “Magistrate”. (Vide para 11 of State of Gujarat v. Girish Radhakrishnan AIR 2014 SC 620 = (2014) 3 SCC 659 – G. S. Singhvi, Gyan Sudha Misra – JJ.)

Q.4 Can an officer-in-charge of a police station (“SHO” for short) without anybody's permission register an FIR and conduct investigation in respect of a “cognizable case”?

Ans. Yes. An SHO can without anybody's permission register an FIR under Section 154 Cr.P.C. or under Section 157 (1) Cr.P.C. and conduct an investigation in respect of a “cognizable case” in view of Section 157 (1) read with Section 156 (1) Cr.P.C. As already seen, a “cognizable case” may include “non-cognizable offences” as well but there should be at least one “cognizable offence”.

If the “information” received by him discloses a “cognizable case” he has to mandatorily register an FIR. (Vide paras 39, 63, 96 of Lalita Kumari v. Govt. of U.P. AIR 2014 SC 187 = (2014) 2 SCC 1 – 5 Judges – P. Sathasivam - CJI, Dr. B. S. Chauhan , Ranjana Prakash Desai, Ranjan Gogoi, S. A. Bobde – JJ.)

But, the SHO cannot, do so if the information received by him alleges a “non-cognizable offence” only.

Q.5 What is the course open to the SHO who receives an “information” alleging the commission of a “non-cognizable offence”?

Ans. If the information received by the SHO alleges only a “non-cognizable offence”, then the SHO cannot register an FIR or conduct investigation. He has to refer the informant to a Magistrate under Section 155 (1) Cr.P.C. The police officer can either direct the informant to approach the Magistrate or he may himself obtain permission from the Magistrate. (Vide para 11 of State of Gujarat v. Girish Radhakrishnan AIR 2014 SC 620 = (2014) 3 SCC 659 – G. S. Singhvi, Gyan Sudha Misra – JJ.) It is only when the Magistrate passes an order under Section 155 (2) Cr.P.C, can the SHO register an FIR and conduct investigation as if it were a “cognizable case”. (Vide Section 155 (3) Cr.P.C).

Q.6 Supposing the offence alleged in the “information” received by the SHO under Section 154 Cr.P.C is an offence punishable under Section 15 (2) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for short) for storing pornographic videos involving a child and meant for distribution and punishable with imprisonment upto 3 years. The SHO can register an FIR only if it is a “cognizable case”. The offence in this case is not one punishable under the IPC. How to decide whether the alleged offence involves a “cognizable offence” or not ?

Ans. Since the offence alleged is not an offence punishable under the IPC, Part – I of the First Schedule to the Cr.P.C has no application. What is applicable is Part – II of the First Schedule as per which if the offence is punishable with imprisonment for 3 years and upwards, it is cognizable and non-bailable. So the SHO has the authority to register an FIR and conduct investigation in this case.

If the offence under a special law were punishable with imprisonment for less than 3 years then, as per Part – II of the First Schedule to Cr.P.C the offence is “non-cognizable”. Hence if the “information” received by the SHO alleges only such an offence, the SHO is not entitled to register an FIR or conduct investigation. The SHO can only refer the “informant” to a Magistrate under Section 155 (1) Cr.P.C. It is only if the Magistrate passes an order under Section 155 (2) Cr.P.C, can the SHO treat the case as a “cognizable case” as provided under Section 155 (4) Cr.P.C and proceed to register an FIR and conduct investigation in view of Section 155 (3) Cr.P.C.