Cognizable vs Non-Cognizable Cyber Offences: Section 77B Explained

Whether the police may register an FIR and arrest without warrant, or must send the complainant to a magistrate, is the first procedural question of every cyber case, and for IT Act offences the answer comes from one 2008 insertion: s.77B. Its rule, cognizable at three years and above, produces the Act's signature combination, offences that are cognizable yet bailable at once. The offences themselves were studied in Topics 57 to 65; this note, as asked, covers the classification separately.

1. The Labels and the Rule

• Cognizable and non-cognizable. A cognizable offence is one for which a police officer may arrest without warrant and investigate without the magistrate's order, the FIR regime; a non-cognizable offence permits neither, the police recording the information, referring the informant to the magistrate, and investigating only on the magistrate's order, arrest needing a warrant.
• The default for other laws. For offences outside the BNS, the BNSS First Schedule's residuary classification governs: punishable with three years and upwards, cognizable and non-bailable; punishable with less than three years, non-cognizable and bailable.
• Section 77B. The IT Act displaces the default: notwithstanding the Code, an offence punishable with imprisonment of three years and above shall be cognizable, and an offence punishable with imprisonment of three years shall be bailable. The section thus both draws the cognizability line and, for the three-year family, overrides the schedule's non-bailable consequence (Topic 66)

Figure 1: From the default to the s.77B result

2. The Classification Applied

Figure 2: The offences classified

• The cognizable-bailable family. ss.66, 66B, 66C, 66D and 66E, each punishable up to three years, and s.67 on first conviction, are cognizable and bailable: the police register and investigate on the FIR, may arrest without warrant, and must then release on bail, the combination that defines routine cyber crime practice.
• The cognizable non-bailable set. Everything above three years: s.67 on second conviction and ss.67A and 67B (five and seven years), s.66F (up to life), the ss.69, 69A and 69B assistance and compliance offences (seven years, one year for 69B), s.70's ten years, and s.72A's three years sits at the line as cognizable and, by the schedule's operation beyond s.77B's bailable words, treated with the three-year rule, bailable (Topics 60 to 63)
• The non-cognizable remainder. Offences under three years stay with the schedule: s.72's two-year disclosure offence, and the certificate offences of ss.71, 73 and 74 at two years, are non-cognizable and bailable, complaint-driven prosecutions needing the magistrate's order for police investigation (Topic 65)
• Special gateways. Classification is not the only filter: s.70B(8) bars cognizance of the CERT-In offence except on CERT-In's complaint, and prosecutions under the interception regimes travel on the machinery their rules provide, so a cognizable label does not always mean an FIR begins the case (Topic 64)

3. The Procedural Consequences

• In a cognizable cyber case. The FIR is registered, at any station as a Zero FIR if needed, investigation proceeds under s.78's Inspector rule with the s.80 public place power available, and arrest without warrant is lawful though governed by the arrest-necessity discipline of the BNSS and the Arnesh Kumar line for offences up to seven years, notice of appearance before arrest being the norm (Topics 83, 86)
• In a non-cognizable cyber case. The information is entered in the station's book and the informant referred to the magistrate; police investigate only on the magistrate's order, and the case proceeds substantially as a complaint case, s.72 prosecutions being the standard example.
• Why the design. Cognizability at three years keeps the investigative machinery available for the offences that need speed, evidence being perishable, while bailability at the same line keeps the liberty cost proportionate, the balance s.77B was inserted to strike.

4. Frequently Asked Questions

Which IT Act offences are cognizable?

By Section 77B, every offence punishable with imprisonment of three years and above: the Section 66 family including 66B to 66E, Section 67 and the aggravated content offences of 67A and 67B, cyber terrorism under 66F, the assistance and compliance offences of Sections 69 to 69B, Section 70's protected system offence and Section 72A. Offences punishable with less than three years, such as Section 72's two-year disclosure offence and the certificate offences of Sections 71, 73 and 74, are non-cognizable, investigated only on a magistrate's order.

How can an offence be cognizable and bailable at the same time?

Because the two labels answer different questions: cognizability decides whether police may register, investigate and arrest without warrant; bailability decides whether the arrested person is entitled to release on bail as of right. Section 77B makes three-year IT Act offences cognizable, giving the police the FIR machinery, and simultaneously declares offences punishable with three years bailable, giving the accused bail of right, so Sections 66 to 66E and Section 67 on first conviction carry both labels at once.

5. Related Topics

• Topic 66: Sections 75 to 78. Section 77B in its procedural cluster.
• Topic 98: Bailable vs Non-Bailable. The companion classification.