Cognizable and Non Cognizable Offences | BNSS 2023

Cognizable and Non-Cognizable Offences under the BNSS, 2023: the Definition, What Turns on the Classification, and Its Independence from Bailability

The Sanhita defines a cognizable offence as one for which a police officer may arrest without warrant, in accordance with the First Schedule or under any other law; and a non-cognizable offence as one for which a police officer has no authority to arrest without warrant.

The definition looks narrow — it speaks only of arrest — but a great deal follows from it. Whether an FIR must be registered, whether the police may investigate at all without a Magistrate’s order, how the case reaches the court, and what the police report becomes when it gets there: all turn on which side of the line the offence falls.

1. The Classification

Figure 1: The two compared

The definitions in section 2(1), BNSS 2023

“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.

“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 classification is made offence by offence in the First Schedule and is fixed by the legislature. The gravity of the particular case does not convert a non-cognizable offence into a cognizable one, and a police officer cannot arrest without warrant because he thinks the facts serious. Where the offence is under a law other than the Bharatiya Nyaya Sanhita, the Schedule classifies it by reference to the punishment — unless that law itself provides otherwise, in which case it prevails.

2. What Turns on It

Figure 2: The four consequences

Whether an FIR must be registered. Where the information discloses a cognizable offence, registration under section 173(1) is mandatory and the officer has no discretion to weigh whether the allegation is likely to be true. In a non-cognizable case, section 174 requires him to enter the substance in a book and refer the informant to the Magistrate — he does not register an FIR at all.
Whether the police may investigate. Section 175(1): in a cognizable case the officer may investigate without the order of a Magistrate. Section 174(2): in a non-cognizable case no police officer shall investigate without such an order — and an investigation conducted without it is without authority.
Whether a person may be arrested without warrant. That is the defining feature of the classification and the reason it exists. The power to arrest without warrant is the most drastic of the ordinary police powers, and the Schedule decides which offences carry it.
And what the police report becomes. Where the police investigate a non-cognizable case on a Magistrate’s order and report that such an offence has been committed, the report is deemed to be a complaint and the officer the complainant — so the case proceeds as a complaint case, not on a police report.

⚠ Where a case involves both

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

So the police may investigate the whole of it without a Magistrate’s order, and may arrest without warrant in respect of the cognizable offence.

That is a practical necessity — an investigation cannot sensibly be split — but it is also the provision most open to misuse, since adding a cognizable offence to an essentially non-cognizable allegation converts the whole matter into one the police may pursue of their own motion.

A court asked to quash such a proceeding will therefore examine whether the cognizable offence is genuinely disclosed by the material or has been added to secure jurisdiction.

📖 Superintendent of Police, CBI v. Tapan Kumar Singh, (2003) 6 SCC 175

Facts: An entry was made in the general diary of a police station recording information which, it was contended, was too vague and incomplete to amount to a first information report, and the investigation which followed was challenged as being without a valid foundation.

Held: The Supreme Court held that a general diary entry which discloses the commission of a cognizable offence may be treated as a first information report, and that an investigation founded on it is valid. The Court held that the first information report is not an encyclopaedia: it need not contain all the details of the occurrence, nor name every person concerned, nor set out the evidence. Its purpose is to set the machinery of the criminal law in motion, and it is enough that it discloses information about the commission of a cognizable offence so as to enable the police to start the investigation. The Court held that the question whether the information discloses a cognizable offence is to be judged on the substance of what is recorded and not on its form or completeness; and that an investigation is not vitiated because the information was incomplete, since the very object of the investigation is to gather the details which the information does not contain.

Ratio: A general diary entry disclosing a cognizable offence may be treated as an FIR. The report is not an encyclopaedia; it need only disclose information about a cognizable offence sufficient to enable the police to begin investigating.

📖 Madhu Bala v. Suresh Kumar, (1997) 8 SCC 476

Facts: A Magistrate, acting on a complaint, directed the police to register a case and investigate. Questions arose as to the nature of such a direction, whether it amounts to taking cognizance, and what the police must do on receiving it.

Held: The Supreme Court held that where a Magistrate, on a complaint disclosing a cognizable offence, directs an investigation by the police, he does so before taking cognizance, and the police are bound to register a case and investigate it in accordance with the ordinary provisions — the direction operating to set in motion the statutory machinery of investigation, not to substitute a special procedure for it. The Court held that on such a direction the police must register a first information report, investigate, and forward a report under the ordinary provision, on which the Magistrate may thereafter take cognizance. It emphasised the distinction between a Magistrate directing an investigation before cognizance, where the case proceeds as a police case, and a Magistrate taking cognizance on the complaint and thereafter inquiring or directing an investigation for the limited purpose of deciding whether there is sufficient ground to proceed — the two producing different kinds of case.

Ratio: Where a Magistrate directs an investigation on a complaint disclosing a cognizable offence, he does so before taking cognizance, and the police must register a case and investigate under the ordinary provisions, forwarding a report on which cognizance may then be taken.

3. Cognizability and Bailability Are Independent

The two classifications are constantly confused, and they answer different questions. Cognizability asks a question about the police: may an officer arrest without a warrant, and may he investigate without a Magistrate’s order? Bailability asks a question about release: once the person is in custody, must he be released on bail, or is it a matter of discretion?

They are decided separately for every offence in the First Schedule, and neither follows from the other. An offence may be cognizable and bailable — the police may arrest without a warrant and must then release him — or non-cognizable and non-bailable, where no arrest is possible without a warrant but bail is discretionary.

4. Key Takeaways

The position stated shortly

1. A cognizable offence is one for which a police officer may arrest without warrant; a non-cognizable offence is one for which he has no such authority.

2. The classification is made offence by offence in the First Schedule and is fixed by the legislature.

3. In a cognizable case, registration of an FIR under section 173(1) is mandatory; in a non-cognizable case the officer enters the substance in a book and refers the informant to the Magistrate.

4. In a cognizable case the police may investigate without a Magistrate’s order; in a non-cognizable case they may not, and an investigation without such an order is without authority.

5. Where the police investigate a non-cognizable case on a Magistrate’s order, the report is deemed to be a complaint and the officer the complainant.

6. Where a case involves both kinds of offence, it is deemed to be a cognizable case — which is a practical necessity but also the provision most open to misuse.

7. A general diary entry disclosing a cognizable offence may be treated as an FIR, and an investigation founded on it is valid: Tapan Kumar Singh.

8. The FIR is not an encyclopaedia: it need only disclose information sufficient to enable the police to begin investigating.

9. Where a Magistrate directs an investigation before cognizance, the police must register a case and proceed under the ordinary provisions: Madhu Bala.

10. Cognizability and bailability are independent. The First Schedule classifies each offence separately on both, and neither follows from the other.

5. Frequently Asked Questions

What makes an offence cognizable?

That a police officer may arrest for it without a warrant, in accordance with the First Schedule or under any other law. The Schedule classifies each offence, and the classification is fixed by the legislature rather than by the gravity of the particular case.

Can the police investigate a non-cognizable offence?

Not without the order of a Magistrate having power to try the case. Section 174(2) forbids it, and an investigation conducted without such an order is without authority.

What happens to information about a non-cognizable offence?

The officer enters its substance in a book kept for the purpose and refers the informant to the Magistrate. He does not register an FIR.

Must an FIR contain all the details?

No. The first information report is not an encyclopaedia. It need only disclose information about the commission of a cognizable offence sufficient to enable the police to begin investigating, the details being what the investigation exists to gather: CBI v. Tapan Kumar Singh.

What if a case involves both cognizable and non-cognizable offences?

It is deemed to be a cognizable case notwithstanding that the other offences are non-cognizable, so the police may investigate the whole of it without a Magistrate’s order.

Does a cognizable offence mean bail will be refused?

No. Cognizability and bailability are independent classifications answering different questions — the first about the police power to arrest without warrant, the second about whether release on bail is a right or a discretion. An offence may be cognizable and bailable.

Related Topics

Information to the Police and Powers to Investigate
Investigation, Inquiry and Trial Distinguished
Bailable and Non-Bailable Offences Compared
A Complaint and a First Information Report Compared
The Electronic FIR and the Zero FIR: Section 173, BNSS
Arrest and the Rights of an Arrested Person: Chapter V, BNSS