What Every Lawyer, Police and Judge Must Know On Non-Cognizable Offence: Advocate S Balan speaks on 'Law on Non-Cognizable Offence'

Lawyers Institute for Empowerment recently held an interactive online class with Advocate S. Balan on ‘Law on Non-Cognizable Offence.’

During the session, Criminal Advocate S Balan explained the issues prevailing in the procedural aspect of non-cognizable offences.

He started the session by listing down some examples wherein mistakes are generally made in order to arrive at the point that “it is not just a mistake, it is incurable illegality”.

He expounded upon the difference between a cognizable offence and a non-cognizable offence by a plain-reading of the Criminal Procedure Code, 1973. (CrPC)

In a cognizable offence, the police have the authority to arrest an individual without a warrant. (Section 2(c) of the CrPC)
In a non-cognizable offence, the police do not have the authority to arrest an individual without a warrant. (Section 2(l) of the CrPC)

He placed emphasis on the fact that in non-cognizable offences, no FIR (First Information Report) can be registered by the investigating agency on a suo-moto basis or on the basis of a complaint or even on the direction of the learned Magistrate. The Police have no jurisdiction to register an FIR in such cases. “Only the First Information discloses a cognizable offence, not otherwise. This is the basic law.”

He stated that “if an FIR is registered, further investigation is carried out, the charge sheet is filed or a final report under S.173 (2) of the CrPC is filed, it is all illegal.”

He further stated that that “receiving a non-cognizable report, registering it as a non-cognizable report and sending a requisition through a police constable to obtain permission from the Magistrate to further investigate is incurable illegality.”

“At any stretch of the imagination, FIR can never be registered for a non-cognizable offence… FIR can only be registered under S.154 in a cognizable offence”

Criminal Adv. S Balan then explained the powers bestowed upon the Magistrate as follows:

The Magistrate gets jurisdiction on two occasions to direct the Station House Officer (SHO) or officer-in-charge of the police station:

Jurisdiction bestowed upon the Magistrate to give directions to the jurisdictional police under S.155 (2) of the CrPC.
For a cognizable offence, a complaint filed under S.200 can be referred straight away to the officer-in-charge of the police station under S.156 (3) of the CrPC.

“Absolute power [is bestowed up]on the learned Magistrate to issue an order for investigation.”

He further dealt with the concept of non-cognisable offences in depth by elucidating S.155 of the CrPC.

“The language is very, very important. No permission. There is absolutely no power to grant permission for investigation. He (the learned Magistrate) should pass an order, applying his mind.”

The key takeaways are as follows:

S.155 (1)– The police have no power to approach the Magistrate. Instead, they should enter the information into the register and refer the informant to the Magistrate.

The illegality arises when the police receive information, register it as a Non-Cognizable Report (NCR), pin it and send a requisition before the Magistrate for his permission.

“Permission, requisition, registering in the form of NCR, attaching the complaint with NCR, forwarding the same to a Magistrate through a police constable- all these procedures are completely illegal…Instead, the complainant should go to the Magistrate, file a private complaint and pray for passing an order”.

S.155(2)– Power is bestowed upon the Magistrate only to pass a speaking order after application of mind. Registering an FIR is illegal in a non-cognizable offence.
S.155(3)– The police have no power to arrest.

“Therefore, what I’m emphasizing here, I read S.155 (1), S.155 (2), S.155 (3), nowhere in all these sections the words ‘permitted’, ‘permissible’ or ‘permit’ are mentioned. What is mentioned is when an order is to be passed, it should be a reasonable order, speaking order, indicating that the learned Magistrate indeed applied his judicial mind for the purpose of passing an order to the officer-in-charge of the police station to investigate; only to investigate – no permission, no FIR.”

He also demonstrated that “in some cases during the course of the investigation of a cognizable offence, the investigating officer comes to the conclusion that there are some materials for non-cognizable offence, then seeks permission of the Magistrate to investigate further- also illegal.” He heavily underlined that “the cumulative effect is this: based on the FIR, no investigation.”

“In a non-cognizable offence, police have no business to arrest… Police have no business or right to issue a notice.”

Next, he arrived at the question of issuing the notice. Referring to Sections 41(a), 41A and 102 of the CrPC, he observed that in a non-cognizable report, police officers have no power to seize property. Dealing with the implications of arresting an individual without following the procedure established by law, he observed that “arrest in non-cognizable offences amounts to wrongful confinement, wrongful restraint… a police officer is not supposed to restrain a citizen if the offence is non-cognizable.”

“Arrest, apprehension, wrongful restraint, recovery of property, recovery of valuables, recovery of money are, per se, illegal.”

He then mentioned certain judgments* which supported his points.

To combat this illegality, Criminal Adv. S Balan suggested the following remedies:

Moving a petition under S. 482 of the CrPC, if High Court is accessible.
Filing a revision application under S. 397 of the CrPC.
“Since the order of cognizance after the filing of the charge sheet, or according permission to investigate under S.155 (2), both are final orders, revision is maintainable. Simply file a revision application before the Sessions Court.”
Filing a writ petition under Article 226 of the Constitution of India, 1950.

“A writ of mandamus or a writ of prohibition can be filed. Both are maintainable”

When recovery of property is illegal, parties are entitled to money.

He concluded the session by giving a brief summary of the entire session by observing:

“Handover of the session: In a non-cognisable offence- no FIR, no recovery, no charge sheet, no arrest; it’s all illegal. The magistrate should pass a reasonable order. The business of permission does not arise, permitting does not arise. The word ‘NCR’, registering in the form of NCR is illegal. These are all illegalities.”

*List of Cases referred: