Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Cognizable and Non Cognizable Offences under the BNSS 2023
Cognizable and Non-Cognizable Offences under the BNSS, 2023: Sections 2(1)(g) and 2(1)(o), FIR, Police Powers of Investigation and Section 175(3)
The division of offences into cognizable and non-cognizable determines how a criminal case begins and who controls its beginning. In a cognizable case the police may arrest without a warrant and may investigate without asking anybody’s permission. In a non-cognizable case they may do neither without the order of a Magistrate. The classification therefore fixes the point at which the machinery of the State engages, and it is the single most important fork in the whole of criminal procedure.
It is also the classification most often confused with the bailable and non-bailable division. The two are independent. Cognizable concerns the power of the police; bailable concerns the entitlement of the accused. An offence may be cognizable and bailable, or non-cognizable and non-bailable, and both combinations appear in the First Schedule.
1. The Definitions
Sections 2(1)(g) and 2(1)(o), BNSS 2023 (g) “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; (o) “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. |
The single defining feature is the power to arrest without a warrant, and the source of that power is the First Schedule or another law. Nothing else enters the definition: not the gravity of the offence, not the length of the punishment, not whether the offence is bailable. Both clauses define the offence and the case together, so that the classification attaches to the case as a whole and not only to the abstract offence.
The second part of the First Schedule performs the same function for offences under other laws by reference to the length of the punishment. Broadly, an offence punishable with imprisonment for less than three years or with fine only is non-cognizable and bailable, and an offence punishable with imprisonment for three years or more is cognizable and non-bailable, unless the special law provides otherwise. A special law frequently does provide otherwise, and where it does, section 4(2) and section 5 give it effect.
2. The Two Routes
Figure 1: The consequences that follow from the classification
2.1 The cognizable route
Information relating to the commission of a cognizable offence is recorded under section 173. Three features of that section are new. The information may be given irrespective of the area in which the offence is committed, which gives statutory form to the Zero FIR. It may be given by electronic communication, and is taken on record on being signed by the person giving it within three days. And a copy is to be given free of cost to the informant or the victim.
Section 175(1) then empowers any officer in charge of a police station to investigate a cognizable case without the order of a Magistrate, and section 175(2) provides that no proceeding of such an officer shall be called in question on the ground that he was not empowered to investigate. Arrest without warrant is available under section 35, subject to the conditions in section 35(1) and to the notice procedure in section 35(3) to (6). The investigation ends in a report to the Magistrate under section 193.
2.2 The non-cognizable route
Where information is given about a non-cognizable offence, the officer in charge enters or causes to be entered the substance of the information in a book kept for the purpose and refers the informant to the Magistrate. This entry is commonly called a non-cognizable report, and it is not a first information report; no investigation follows from it.
Section 174(2) provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try the case or commit it for trial. Once such an order is made, the officer has the same powers in respect of the investigation as in a cognizable case, except the power to arrest without warrant. That exception is important: the Magistrate’s order supplies the authority to investigate but cannot supply the authority to arrest, which the definition itself withholds.
The circuit is completed by the Explanation to section 2(1)(h). A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence is deemed to be a complaint, and the officer is deemed to be the complainant. The case therefore proceeds as a complaint case and not on a police report, which determines the trial procedure that applies.
2.3 Mixed cases
Section 174(3), BNSS 2023 Any case in which a police officer receives information relating to the commission of a cognizable offence and a non-cognizable offence, and the cognizable offence is one of the offences in the case, shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. |
The rule is one of practical necessity: it would be unworkable to require a Magistrate’s order for part of a single investigation. Its consequence is that the addition of one cognizable offence to a set of non-cognizable allegations converts the whole case, and it is accordingly a frequent subject of challenge where the cognizable offence appears to have been added without foundation. The answer to such a challenge lies not in the classification but in the power to quash, since the remedy is to test whether the allegations disclose the cognizable offence at all.
3. The Classifications Are Independent
Figure 2: All four combinations of the two classifications
âš Three errors to avoid Cognizable is not a synonym for non-bailable. The First Schedule fills in the two columns independently for every offence, and all four combinations exist. Cognizable is not a statement about gravity. The test in section 2(1)(g) is whether a police officer may arrest without a warrant, and the answer is read off the entry in the Schedule or off the special law. Reasoning from the seriousness of the conduct to the classification is the commonest source of error. A non-cognizable case is not one in which the police have no role. They may investigate on the order of a Magistrate, with all the powers of a cognizable investigation except arrest without warrant, and the report they file is deemed to be a complaint. |
4. The Duty to Register and the Preliminary Inquiry
Because the classification decides whether the police may act at all, the question whether a given piece of information discloses a cognizable offence is the gateway to the whole process. The Supreme Court has treated the registration of such information as a duty rather than a discretion, and the Sanhita has now qualified that position for one band of offences.
📖 State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 Facts: A complaint alleging offences under the Prevention of Corruption Act, 1947 and the Indian Penal Code was forwarded to the police, who registered a case and began investigation. The High Court quashed the FIR. The appeals raised two questions: the extent of the duty of a police officer to register information disclosing a cognizable offence, and the circumstances in which a court may interfere with an investigation. Held: The Supreme Court held that at the stage of registration the officer is not required to consider the reasonableness or credibility of the information; if it discloses the commission of a cognizable offence he is statutorily obliged to register a case and the receipt and recording of the information is not a condition precedent to the setting in motion of the investigation. The Court also laid down, by way of illustration and not exhaustively, seven categories of case in which the extraordinary power to quash a first information report or an investigation may be exercised, including where the allegations even if taken at face value do not prima facie constitute any offence, where they do not disclose a cognizable offence justifying investigation without a Magistrate’s order, and where the proceeding is manifestly attended with mala fides. Ratio: The obligation to register information disclosing a cognizable offence is statutory and not discretionary; the credibility of the information is a matter for investigation. The safeguard against abuse lies not in refusing registration but in the power of the High Court to quash in the defined categories. |
Section 173(3) of the Sanhita introduces a statutory qualification. On receiving information relating to a cognizable offence punishable with three years or more but less than seven years, the officer in charge may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police and having regard to the nature and gravity of the offence, conduct a preliminary inquiry within fourteen days to ascertain whether a prima facie case exists, or may proceed to investigate where such a case exists.
Punishment prescribed for the offence | What section 173 permits |
|---|---|
Less than three years | Registration follows on the information disclosing a cognizable offence; no preliminary inquiry is provided for |
Three years or more but less than seven years | A preliminary inquiry of fourteen days is available with the prior permission of an officer not below the rank of Deputy Superintendent of Police |
Seven years or more | Registration follows; no preliminary inquiry is provided for, and section 176(3) additionally requires a forensic expert to visit the scene |
The provision sits uneasily with the Constitution Bench decision that registration is mandatory where the information discloses a cognizable offence, and the reconciliation is examined in the topic on the major changes made by the Sanhita. For present purposes the point is narrower: the band into which an offence falls, and therefore whether the power exists at all, is itself determined by the punishment fixed by the substantive law.
5. The Magistrate’s Power to Order Investigation
Two provisions permit a Magistrate to direct the police to investigate, and the difference between them turns on the classification and on whether cognizance has been taken.
Section 174(2) | Section 175(3) | |
|---|---|---|
Applies to | A non-cognizable case | A cognizable case |
What it does | Supplies the authority that the police otherwise lack to investigate at all | Directs an investigation that the police were already competent to conduct but have not conducted |
Who may order | A Magistrate having power to try the case or commit it for trial | A Magistrate empowered under section 210 |
Effect on the powers of the police | The officer has the same powers as in a cognizable case, except the power to arrest without warrant | The ordinary powers of a cognizable investigation |
New safeguards in the Sanhita | None added | The Magistrate must consider an application supported by an affidavit, may make such inquiry as he thinks necessary, and must consider the submissions of the police officer on the request |
Stage | Before any cognizance | Before cognizance; it is a pre-cognizance power |
đź“– Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252 Facts: On a private complaint the Magistrate, without examining the complainant on oath, directed an investigation by the police. It was contended that the order could only have been made under section 202 of the Code of Criminal Procedure, 1973 after taking cognizance, and that the procedural requirements applicable to that stage had not been followed. Held: The Supreme Court distinguished the power under section 156(3) from the power under section 202. The former is exercisable at the pre-cognizance stage, when the Magistrate is in seisin of the matter but has not applied his mind for the purpose of proceeding under the following provisions; its purpose is to set the police in motion to investigate. The latter is exercisable after cognizance has been taken, and the investigation it directs is of a limited kind, for the purpose of deciding whether there is sufficient ground to proceed. Where a Magistrate applies his mind not for proceeding under the subsequent sections but for ordering an investigation, he has not taken cognizance. Ratio: The order directing investigation before cognizance and the inquiry directed after cognizance are distinct powers with distinct purposes. Which one is exercised depends on whether the Magistrate has applied his mind for the purpose of proceeding against the accused. |
The distinction carries into the Sanhita, where the pre-cognizance power is section 175(3) and the post-cognizance inquiry is section 225. The Sanhita has added a safeguard to the first: the Magistrate must now act on an application supported by an affidavit and must consider the submissions of the police officer before ordering investigation, which meets the criticism that section 156(3) of the old Code was being used to set the police in motion on unverified allegations.
6. Cognizable and Non-Cognizable Compared
Point of comparison | Cognizable offence | Non-cognizable offence |
|---|---|---|
Definition | Police may arrest without warrant in accordance with the First Schedule or any other law: section 2(1)(g) | Police have no authority to arrest without warrant: section 2(1)(o) |
Recording of information | First information report under section 173 | Substance entered in a book and the informant referred to the Magistrate: section 174(1) |
Power to investigate | Without the order of a Magistrate: section 175(1) | Only on the order of a Magistrate: section 174(2) |
Power to arrest | Without warrant, subject to section 35 | Not without a warrant, even after a Magistrate’s order |
Preliminary inquiry | Available under section 173(3) for offences punishable with three years or more but less than seven | Does not arise; no investigation without an order |
How the case reaches the court | On a police report under section 193 | On a report deemed to be a complaint under the Explanation to section 2(1)(h), or on a complaint by the aggrieved person |
Typical gravity | Generally the more serious offences, but gravity is not the test | Generally the less serious offences, but gravity is not the test |
Mixed cases | Where the case includes at least one cognizable offence the whole case is deemed cognizable: section 174(3) | The non-cognizable character is lost in such a case |
7. Key Takeaways
The position stated shortly 1. A cognizable offence is one for which a police officer may arrest without a warrant in accordance with the First Schedule or any other law; a non-cognizable offence is one for which he has no such authority: sections 2(1)(g) and 2(1)(o). 2. The test is the power of arrest alone. Gravity, punishment and the bailable classification form no part of the definition. 3. In a cognizable case information is recorded as an FIR under section 173, which now permits registration irrespective of the area and by electronic communication, and the police may investigate without a Magistrate’s order under section 175(1). 4. In a non-cognizable case the substance of the information is entered in a book, the informant is referred to the Magistrate, and no investigation may be conducted without the Magistrate’s order under section 174(2). 5. On such an order the officer has all the powers of a cognizable investigation except the power to arrest without warrant. 6. A police report disclosing, after investigation, a non-cognizable offence is deemed to be a complaint and the officer the complainant: Explanation to section 2(1)(h). 7. Where a case includes at least one cognizable offence the whole case is deemed cognizable: section 174(3). 8. Registration of information disclosing a cognizable offence is a statutory duty and not a discretion, and the credibility of the information is a matter for investigation: Bhajan Lal, which also states the categories in which an FIR may be quashed. 9. Section 175(3) is a pre-cognizance power to direct investigation, distinct from the post-cognizance inquiry, and now requires an affidavit and consideration of the police officer’s submissions: Devarapalli Lakshminarayana Reddy. |
8. Frequently Asked Questions
What is a cognizable offence under the BNSS?
An offence for which a police officer may arrest without a warrant in accordance with the First Schedule to the Sanhita or under any other law in force. The definition is in section 2(1)(g), and a non-cognizable offence is defined in section 2(1)(o) as one for which he has no such authority.
Can the police investigate a non-cognizable offence?
Only on the order of a Magistrate having power to try the case or commit it for trial, under section 174(2). Once the order is made the officer has the same powers as in a cognizable case, except the power to arrest without a warrant.
Is an FIR registered in a non-cognizable case?
No. The officer in charge enters the substance of the information in a book kept for the purpose and refers the informant to the Magistrate. That entry is not a first information report, and the report eventually filed after an ordered investigation is deemed to be a complaint.
What happens if a case involves both cognizable and non-cognizable offences?
Under section 174(3) the whole case is deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. A single cognizable offence in the set therefore converts the entire case.
Is every cognizable offence non-bailable?
No. The two classifications are independent and the First Schedule fills in each column separately. Cognizable and bailable offences exist, and so do non-cognizable and non-bailable ones.
When can the police conduct a preliminary inquiry before registering an FIR?
Under section 173(3), where the information relates to a cognizable offence punishable with three years or more but less than seven years, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, and having regard to the nature and gravity of the offence. The inquiry must be completed within fourteen days.
Related Topics
- Bailable and Non-Bailable Offences under the BNSS, 2023
- Summons Case and Warrant Case under the BNSS, 2023
- Information in Cognizable Cases: Section 173, Zero FIR and e-FIR
- Section 175(3) BNSS: The Magistrate’s Power to Order Investigation
- Arrest under the BNSS, 2023: Sections 35 to 62
- Important Definitions under Section 2 of the BNSS, 2023