Cognizable offence

Topic: Justice Delivery: Subordinate Courts, Tribunals, Legal Aid and Judicial Reforms · NCERT: Beyond NCERT

Meaning

A cognizable offence is a crime for which the police can arrest without a warrant (a written order from a court) and start an investigation without a magistrate's order. Murder and rape are examples. Offences are put into this class in the First Schedule of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023.

It matters because this label decides whether the police must act on their own or must wait for a court. For a cognizable offence, the police must register a First Information Report (FIR), which starts the whole criminal justice process.

Explanation

Where the label comes from

• The First Schedule of the BNSS 2023 lists each offence and says whether it is cognizable or non-cognizable.
• The BNSS replaced the CrPC 1973 from 1 July 2024. It has 531 sections. The CrPC had 484.
• Cognizable offences are usually the more serious crimes. But the legal test is the Schedule listing, not how serious the crime seems.

Feature	Cognizable offence	Non-cognizable offence
Arrest	Police can arrest without a warrant	A warrant is needed
Investigation	Starts without a magistrate's order	Needs a magistrate's order
Example	Murder, rape	Defamation
Record	FIR under BNSS s.173	Entered in a book and referred to a magistrate (s.174)

How the process runs, step by step

1. Information reaches the police (BNSS s.173). - Orally: the officer writes it down, reads it back, and the informant signs it [1]. - Electronically (e-FIR): it is taken on record only once the informant signs within 3 days [1]. - At any police station (Zero FIR): s.173(1) allows information "irrespective of the area where the offence is committed". The case is then sent to the station with jurisdiction (the legal power to handle it) [1][2].

2. FIR is registered. The informant or victim gets a free copy at once (s.173(2)) [1].

3. Preliminary enquiry (only for some offences). - Applies to offences punishable with 3 years or more but less than 7 years. - Needs permission from an officer not below DSP (Deputy Superintendent of Police). - Must finish within 14 days. It checks whether there is a prima facie case (a case that looks valid at first sight) [1].

4. Investigation. - For offences punishable with 7 years or more, a forensic expert must visit the crime scene. The visit is filmed (s.176(3)) [1]. - Searches (s.185) and search-and-seizure (s.105) must be audio-video recorded [1].

5. Arrest and custody (see the limits below).

6. Charge sheet (police report, s.193). - Rape and POCSO cases: investigation must finish within 60 days (s.193(2)) [1]. - The victim or informant must be told of progress within 90 days (s.193(3)(ii)) [1].

7. Court takes cognizance, which means the court formally starts the case on the police report.

Limits on police power

• "Can arrest" does not mean "must arrest".
• BNSS s.35: for offences punishable with up to 7 years, the police should first issue a notice of appearance (an order to come to the police). Old CrPC ss.41 and 41A are merged into s.35 [1].

• To arrest a person who is infirm or above 60 for an offence punishable with less than 3 years, the police need DSP permission [1].

• Article 22: the arrested person must be told the grounds of arrest, can consult a lawyer, and must be produced before the nearest magistrate within 24 hours.

• BNSS s.58: this can be any magistrate's court, "whether having jurisdiction or not" [1].

• Handcuffs (s.43(3)) are allowed only in listed cases, such as habitual offenders, escapees, terrorism, murder and rape [1].

• Custody (s.187): police custody can last 15 days at most. It can be taken in parts within the first 40 days (most offences) or 60 days (offences punishable with death, life imprisonment or 10 years or more) [1].
• If the police refuse to register an FIR, the person can go to the Superintendent of Police, and then to the magistrate (s.173(4)) [1].

In the Constitution and practice

• Federal placement: "Public order" (entry 1) and "Police" (entry 2) are in the State List, Seventh Schedule. So state police forces deal with cognizable offences on the ground.
• Constitutional shield: Article 22 protects people arrested without a warrant. Under 22(3), these rights do not apply to enemy aliens or to people held under preventive detention (detention to stop a possible future crime, not to punish a past one).
• Statute: the classification now sits in the BNSS 2023 (in force from 1 July 2024). It earlier sat in the CrPC 1973.
• Landmark cases:
• D.K. Basu v State of West Bengal (1997): arrest memo signed by a witness, telling a relative of the arrest, and a medical check. These are now in the BNSS:
  • s.48: the nominated person and the district's designated officer must be told of the arrest [1].
  • s.53: medical examination; a woman is examined only by or under a female medical officer [1].
• Lalita Kumari v Govt. of Uttar Pradesh (2013): registering an FIR is mandatory when the information shows a cognizable offence.
• Arnesh Kumar v State of Bihar (2014): no automatic arrest for offences punishable with up to 7 years. Police must record their reasons, and the magistrate must check them.

• Paramvir Singh Saini v Baljit Singh (2020): CCTV in police stations to stop custodial abuse.

• Key instance: the Justice Verma Committee (2013), set up after the December 2012 Delhi gang-rape, recommended the Zero FIR. It is now statutory under BNSS s.173(1) [1][2].

Don't confuse with

• Non-cognizable offence: the police need a warrant to arrest and a magistrate's order to investigate. The case is entered in a book under s.174, not as an FIR. Example: defamation.
• Cognizance (by a court): this is the court formally starting a case, usually on the charge sheet (s.193). A "cognizable offence" is about the police's power to arrest and investigate.
• Bailable / non-bailable offence: this is a separate classification about release on bail. A cognizable offence is not automatically non-bailable.
• Preventive detention: this is holding a person to prevent a possible crime, and Article 22's normal arrest safeguards do not apply. Arrest for a cognizable offence follows a crime that has already happened.

Prelims Hooks

• Cognizable and non-cognizable offences are listed in the First Schedule of the BNSS 2023, which replaced the CrPC 1973 from 1 July 2024.
• Lalita Kumari (2013) → FIR registration is mandatory for cognizable offences. Arnesh Kumar (2014) → no automatic arrest for offences punishable with up to 7 years.
• Preliminary enquiry before an FIR → offences punishable with 3 to 7 years, needs DSP permission, must finish within 14 days [1].
• Zero FIR → recommended by the Justice Verma Committee (2013), now statutory under BNSS s.173(1). e-FIR → valid once the informant signs within 3 days [1].
• Trap: "Police" and "Public order" are State List entries 2 and 1, not Concurrent List entries.
• Trap: even for a cognizable offence, arresting a person above 60 or infirm for an offence punishable with less than 3 years needs DSP permission (BNSS s.35) [1].

Mains Points

• Duty to register vs room to delay:
• Zero FIR, e-FIR, a free FIR copy and the 90-day progress update make it easier for victims to put the law in motion [1].

• But the new preliminary enquiry for 3–7 year offences gives police a chance to delay the FIR. This goes against the spirit of Lalita Kumari (2013).

• Power to arrest vs personal liberty:

• Warrantless arrest is needed for serious crime. But it is often misused, and custodial violence is common. NHRC registered 31,845 custodial death cases in 1993-2018 [4].
• Safeguards: BNSS s.35 (notice first), Arnesh Kumar, D.K. Basu, audio-video recording and CCTV (Paramvir Singh Saini, 2020).

• Gap: India signed UNCAT in 1997 but has not ratified it [5]. The Law Commission 273rd Report (2017) proposed an anti-torture law [6].

• Investigation needs vs bail: police custody can now be split within 40 or 60 days (s.187) [1]. This helps investigation, but it may lead to bail being refused because police can say they need the accused back for questioning [3]. Together with the colonial Police Act 1861 and slow police reform after Prakash Singh (2006), the first link of the criminal justice chain stays weak.

Related concepts

• Criminal justice system
• Police
• Commissionerate system of policing
• Non-cognizable offence
• First Information Report
• Zero FIR
• e-FIR
• Charge sheet
• Arnesh Kumar guidelines
• Police custody

Read more

• Criminal justice I: police, FIR, arrest and custody