Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Non Cognizable Offences under the BNSS 2023 Section 174
Non-Cognizable Offences under the BNSS, 2023: Section 174, Information, Investigation on a Magistrate’s Order, and the Deeming Provisions
The whole of the police power to investigate rests on a single distinction. In a cognizable case the police may act on their own: they register a first information report under section 173, they investigate under section 175(1) without anyone’s permission, and they may arrest without a warrant. In a non-cognizable case they may do none of those things. They record the substance of the information, refer the informant to a Magistrate, and wait.
Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the provision that says so, and it is short. Its importance is out of proportion to its length, because an investigation conducted without the order it requires is an investigation without authority, and everything built on it is open to challenge.
Figure 1: The two routes, and the two deeming provisions
1. Section 174: the Text
Section 174, BNSS 2023 (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall — (i) enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may by rules prescribe, and refer the informant to the Magistrate; (ii) forward the daily diary report of all such cases fortnightly to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such an order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (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. |
1.1 What clause (ii) added
Clause (ii) of sub-section (1) is new. Section 155(1) of the Code of Criminal Procedure required the substance to be entered in a book and the informant to be referred to the Magistrate; it said nothing about any report to the Magistrate. Section 174(1)(ii) now requires the officer to forward the daily diary report of all such cases fortnightly to the Magistrate.
The addition is a small piece of accountability with a real purpose. Under the old provision, a non-cognizable case that was recorded and then forgotten left no trace with any judicial officer, and an informant who did not himself go to the Magistrate had no remedy and frequently did not know he needed one. The fortnightly report puts the existence of every such case before a Magistrate whether or not the informant moves.
2. The Bar in Sub-Section (2)
Sub-section (2) is the operative prohibition: 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. Three points on its scope.
- The bar is absolute. It is not a requirement of propriety or of departmental practice. An officer who investigates a non-cognizable case without an order acts wholly without authority, and the Sanhita provides no exception, no emergency power and no ratification after the event.
- The order must come from the right Magistrate. Not any Magistrate, but one having power to try the case or to commit it for trial. The competence to order the investigation is tied to competence over the case itself.
- The order confers the investigative powers but not the power to arrest. Sub-section (3) gives the officer the same powers as in a cognizable case except the power to arrest without warrant. That exception is written into the section and cannot be dispensed with by the Magistrate, because the definition of a non-cognizable offence in section 2(1)(o) is precisely an offence for which a police officer may not arrest without a warrant.
📖 Keshav Lal Thakur v. State of Bihar, (1996) 11 SCC 557 Facts: The appellant was prosecuted for an offence under the Representation of the People Act which was non-cognizable. The police had registered a case and investigated it and had submitted a charge sheet, without any order of a Magistrate under section 155(2) of the Code of Criminal Procedure having been obtained. The question was what follows from the absence of such an order. Held: The Supreme Court held that since the offence was non-cognizable, the police had no authority to investigate it without the order of a competent Magistrate, and the investigation was therefore without jurisdiction. It followed that the police could not have submitted a report under section 173, and the Magistrate could not take cognizance on such a report. The Court held that the proper course, since the facts might disclose an offence, was to treat the matter as a complaint and proceed accordingly; but the charge sheet and the cognizance taken upon it could not stand, and they were set aside. Ratio: An investigation into a non-cognizable offence conducted without the order of a competent Magistrate is without jurisdiction. No police report can result from it, and cognizance cannot be taken upon such a report. |
⚠ The consequence is not the same as for an irregular investigation generally Where an investigation into a cognizable offence is conducted by an officer who lacked territorial competence, or is otherwise irregular, the settled position is that the trial is not vitiated: the defect goes to the weight of the evidence and the remedy is transfer, not nullity. The position under section 174(2) is different in kind, because the objection is not that the wrong officer investigated but that no officer had any power to investigate at all. There was no authority to be exercised irregularly. The practical consequence is that the report cannot support cognizance. But it does not follow that the accused goes free: the facts may still be placed before the Magistrate as a complaint, and that is the route the Sanhita contemplates for a non-cognizable offence in any event. |
3. The Two Deeming Provisions
3.1 Section 174(4): one cognizable offence converts the case
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. The provision is practical: an occurrence rarely falls neatly into one legal description, and requiring the police to investigate part of a transaction and to refer the rest to a Magistrate would be unworkable.
Two consequences. The whole case may be investigated by the police without any order, including the non-cognizable offences in it. And the case is instituted on a police report, with the trial procedure that follows from that. The provision is therefore frequently the point on which an objection to jurisdiction turns: if the cognizable offence in the set is shown to be untenable on the material, the foundation for treating the whole case as cognizable falls away.
3.2 The Explanation to section 2(1)(h): the report deemed a complaint
The Explanation to section 2(1)(h), BNSS 2023 A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. |
The Explanation deals with the situation where the police investigate on a footing that turns out to be wrong: a case registered as cognizable in which the investigation discloses only a non-cognizable offence. Without the deeming provision the report would be a nullity, because a police report presupposes a lawful investigation. The Explanation preserves the work by converting its product into a complaint, with the investigating officer as the complainant.
Consequence of the deeming | Content |
|---|---|
The case is instituted otherwise than on a police report | It follows the complaint route: the Magistrate takes cognizance under section 210(1)(a) on a complaint, not under section 210(1)(b) on a police report |
The complainant must be examined on oath | Under section 223, the Magistrate examines the complainant — here, the police officer — and the witnesses present |
The trial procedure changes | A warrant case so instituted is tried under the branch of Chapter XX applicable to cases instituted otherwise than on a police report, in which all the prosecution evidence is taken before the charge is framed |
The accused must be heard before cognizance | Section 223 requires the accused to be given an opportunity of being heard before cognizance is taken on a complaint. That requirement is new |
Section 230 does not apply in the same way | The supply of documents in a case instituted on a police report is governed by section 230; in a complaint case the position is governed by the provisions applicable to that route |
4. The Magistrate’s Order
An order under section 174(2) is not a formality. It is the source of the entire authority to investigate, and the Magistrate making it is doing something he is not obliged to do. Two features distinguish it from an order under section 175(3), with which it is often confused.
Order under section 174(2) | Order under section 175(3) | |
|---|---|---|
When it is made | Where the offence is non-cognizable and the police therefore have no power to investigate at all | Where the offence is cognizable and the police have power but have declined or failed to investigate |
What it does | Confers the power to investigate, which did not exist | Directs the exercise of a power that already existed |
Who may make it | A Magistrate having power to try the case or commit it for trial | A Magistrate empowered under section 210 |
Preconditions | None prescribed beyond the competence of the Magistrate | New in the Sanhita: the application must be supported by an affidavit, the Magistrate may make such inquiry as he thinks necessary, and he must consider the submissions of the police officer on the request |
Power to arrest | Withheld: the officer gets every power except arrest without warrant | The full powers of a cognizable investigation, including arrest |
📖 Suresh Chand Jain v. State of Madhya Pradesh, (2001) 2 SCC 628 Facts: A Magistrate, on a complaint, directed the police to investigate. The question was whether such a direction was made in exercise of the power to order an investigation before taking cognizance, or in exercise of the power to direct an investigation after taking cognizance for the purpose of deciding whether there is sufficient ground for proceeding, and what difference the distinction makes. Held: The Supreme Court drew the distinction clearly. An order directing the police to investigate made before the Magistrate takes cognizance is an order at the pre-cognizance stage; the Magistrate is not applying his mind to the offence for the purpose of proceeding, but is setting the investigative machinery in motion, and the police thereafter investigate with their full statutory powers and submit a report. An order made after cognizance has been taken, for the purpose of deciding whether there is sufficient ground for proceeding, is of a different character: it is an aid to the Magistrate’s own inquiry, the police do not acquire the powers of a full investigation, and no police report results. The Court held that the two must not be confused, since the consequences for the powers of the police and for the form in which the case comes back to the court are entirely different. Ratio: A direction to investigate made before cognizance sets the full investigative machinery in motion and produces a police report. A direction made after cognizance is an aid to the Magistrate’s inquiry and does not. |
The distinction matters for section 174 because an order under sub-section (2) is necessarily a pre-cognizance order of the first kind: it confers the power to investigate, and the investigation that follows produces a report on which the Magistrate may then take cognizance. A direction to the police to inquire, made after the Magistrate has already taken cognizance on a complaint disclosing a non-cognizable offence, is a different thing and does not cure the absence of an order under section 174(2).
5. The Two Routes Compared
Figure 2: The investigation compared, step by step
The difference between the two routes is not one of gravity. Some non-cognizable offences carry substantial punishment, and some cognizable offences are minor. The difference is in who decides that an investigation shall take place: the police in a cognizable case, a Magistrate in a non-cognizable one. The classification is made in the First Schedule, and for offences under other laws by the general rule in the second part of that Schedule, which classifies by punishment.
⚠ Three practical points Check the Schedule, not the instinct. Whether an offence is cognizable is a question of classification and not of seriousness. The First Schedule, and for offences under other laws the general entries at its end, decide it. A refusal to register is not answered by section 174. Where the information discloses a cognizable offence, registration under section 173 is mandatory and the officer cannot avoid it by treating the matter as non-cognizable. The remedies are section 173(4) to the Superintendent of Police and section 175(3) to a Magistrate. The informant is not without a remedy in a non-cognizable case. Section 174(1)(i) requires the officer to refer him to the Magistrate, and the ordinary route is a complaint under section 223. He may also apply for an order under section 174(2) if he wants the police to investigate. |
6. Key Takeaways
The position stated shortly 1. On information of a non-cognizable offence, the officer enters the substance in a book, refers the informant to the Magistrate, and — this is new — forwards the daily diary report of all such cases fortnightly to the Magistrate: section 174(1). 2. There is no first information report in a non-cognizable case. Section 173 does not apply to it. 3. 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: section 174(2). 4. On such an order the officer has the same powers as in a cognizable case, except the power to arrest without warrant: section 174(3). That exception cannot be dispensed with, because it is what makes the offence non-cognizable. 5. An investigation conducted without the order is without jurisdiction; no police report can result, and cognizance cannot be taken on it. The facts may still be placed before the Magistrate as a complaint: Keshav Lal Thakur. 6. Section 174(4): where a case relates to two or more offences of which at least one is cognizable, the whole case is deemed cognizable. 7. The Explanation to section 2(1)(h): a report disclosing, after investigation, a non-cognizable offence is deemed to be a complaint and the officer the complainant. 8. The consequence of that deeming is procedural and substantial: the complainant is examined on oath under section 223, the accused must be heard before cognizance, and the warrant-case trial proceeds under the branch in which all prosecution evidence is taken before the charge. 9. An order under section 174(2) confers a power that did not exist; an order under section 175(3) directs the exercise of a power that did. The second now requires an affidavit and consideration of the police officer’s submissions. 10. A direction to investigate made before cognizance sets the full machinery in motion and produces a police report; one made after cognizance is an aid to the Magistrate’s inquiry and does not: Suresh Chand Jain. |
7. Frequently Asked Questions
Can an FIR be registered for a non-cognizable offence?
No. Section 173 applies to information relating to a cognizable offence. On information of a non-cognizable offence the officer enters the substance in a book under section 174(1) and refers the informant to the Magistrate; there is no first information report.
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: section 174(2). Without such an order the police have no power to investigate at all.
Can the police arrest in a non-cognizable case after the Magistrate’s order?
Not without a warrant. Section 174(3) gives the officer the same powers as in a cognizable case except the power to arrest without warrant, and section 35(2) separately provides that no person concerned in a non-cognizable offence shall be arrested except under a warrant or order of a Magistrate, subject to section 39.
What happens if the case involves both cognizable and non-cognizable offences?
Under section 174(4) the case is deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. The police may therefore investigate the whole case without any order, and the case is instituted on a police report.
What if the investigation discloses only a non-cognizable offence?
The Explanation to section 2(1)(h) deems the report to be a complaint and the police officer to be the complainant. The case then proceeds by the complaint route, with the officer examined on oath under section 223.
What is new in section 174 compared with the CrPC?
Clause (ii) of sub-section (1), requiring the officer to forward the daily diary report of all such cases fortnightly to the Magistrate. Section 155 of the CrPC contained no such requirement, and the addition places the existence of every non-cognizable case before a judicial officer whether or not the informant moves.
Related Topics
- Cognizable and Non-Cognizable Offences under the BNSS, 2023
- Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196
- FIR under the BNSS, 2023: Section 173, Zero FIR and e-FIR
- Complaint, FIR and Police Report: The Distinction
- Classification of Offences under the First Schedule
- Police Report under the BNSS, 2023: Section 193