JAMIA MILLIA ISLAMIA

2017-18
PROJECT ON CODE OF CRIMINAL PROCEDURE

Topic : “CLASSIFICATION OF OFFENCES. ”

SUBMITTED BY: SUSHANT NAIN

(SECTION-A) ( 4TH YEAR) (FACULTY OF LAW)
SUBMITTED TO : DR. MOHAMMAD ASAD MALIK
 CONTENTS
1. INTRODUCTION
2. BAILABLE AND NON-BAILABLE OFFENCES
A. Difference in Bail Provisions in Bailable and Non-
Bailable Offences
B. EXAMPLES
3. COGNIZABLE AND NON COGNIZABLE OFFENCES
A. DIFFERENCE
B. EXAMPLES
4. WARRANT AND SUMMON CASE
A. DEFINITION
B. COMPARISON
Acknowledgement

I would like to express my special thanks of gratitude to

my teacher Dr Mohammad Asad Malik who gave me the
golden opportunity to do this wonderful project which
also helped me in doing a lot of Research and I came to
know about so many new things I am really thankful to
him.

SUSHANT
INTRODUCTION

What is an offence?

General Concept of Offence

A violation of a penal law is an offence. Thus, any act which is deemed as an
offence by any law is an offence. In general, such act which causes a violation of
rights of others or cause harm to others and is so dangerous that is also affects
the society at large is designated as offence by the legislature through the acts of
the parliament. Section 2(n) of CrPC defines an offence as follows -
Section 2(n) - "Offence" means any act or omission made punishable by any law
for the time being in force and includes any act in respect of which a complaint
may be made under section 20 of the Cattle-trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if
that act would be an offence if committed in India.

Under the Criminal Procedure Code, offences can be classified on the basis of the
following three criterions;

 Cognizable and Non cognizable offences

 Bailable and Non bailable offences

 Offences which will invoke a summons case and Offences which will invoke
a warrants case.

 Cognizable and Non-Cognizable offences

 Cognizable and non-cognizable offences Cognizable offences have been

defined in Criminal Procedure Code as follows; " `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".
 A non-cognizable offence has been defined in Criminal Procedure Code as
follows, "`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".

 Now which offence falls under the category of cognizable offences and
which falls under the category of non-cognizable offences can be
determined as per the classification given in the First Schedule of the
Criminal Procedure Code. The First Schedule has classified all acts
punishable under the Indian Penal Code, 1860 into Cognizable and non-
cognizable offences. Although the Code in itself does not give any reasoning
as to this classification, certain patterns can be traced if the First schedule is
studied carefully. All offences which have a punishment of more than 3
years under the Indian Penal Code are considered to be cognizable offences
and all offences which have a punishment of less than 3 years are non-
cognizable offences. Subsequently, it can be deduced that non-cognizable
offences are relatively less serious in nature than cognizable offences.

 Consequently, in case of cognizable offences, the police officers can

arrest the accused person without any warrant or authority issued by a
magistrate. They can initiate investigation on their own accord and they
needn't wait for the prior permission of a magistrate. In fact, they have a
legal duty to initiate investigations. "No proceeding of a police officer in any
such case shall at any stage be called in question on the ground that the case
was one which such officer was not empowered under this section to
investigate."

 On the other hand, police officers necessarily need prior permission of a

magistrate to initiate investigations in cases of non-cognizable offences. Non
cognizable offences are considered more in the nature of private wrongs and
therefore the collection of evidence and the prosecution of offender are left
to the initiative and efforts of private citizens.
 Bailable And Non-Bailable offences

 Criminal Procedure Code defines bailable and non-bailable offences as "an

offence which is shown as bailable in the First Schedule, or which is made
bailable by any other law for the time being in force; and "non-bailable
offence" means any other offence" In here too, the code does not give any
reason as to on what criteria has such classification been based upon. It just
lays down a seemingly arbitrary classification of the same. However, it can
be logically deduced that all serious offences are non-bailable whereas all
less serious offences are bailable.

 Similarly, all offences which have a punishment of more than 3 years under
the Indian Penal Code are considered to be non-bailable offences and all
offences which have a punishment of less than 3 years are bailable offences.
This too is subject to the exception of existence of a contrary law. If a person
accused of a bailable offence is arrested or detained without warrant he has a
right to be released on bail. In case he is accused of a non-bailable offence,
then his bail is subject to the discretion by the authorities.

Warrant Case And Summons Case

 According to the Criminal Procedure Code, a warrant-case "means a case

relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years ".

 According to the Criminal Procedure Code, "a summons case means a case
relating to an offence, not being a warrant case".

 This classification helps to determine the type of trial procedure to be

adopted in the case. Naturally, the trial procedure in case of a warrant case is
much more elaborate than that of a summons case. This classification is also
useful at the stage of issuing process to the accused person in the first
instance
 Bailable And Non-Bailable offences
The Cr. P.C. classifies offences into two categories  bailable and non- bailable.
The classification is done mainly on the basis of the gravity of the offence and the
punishment provided for such offence. Generally speaking, a bailable offence is
considered to be less grave and serious than a non-bailable offence. Bailable
and non-bailable offences aredefined in clause (a) of S. 2 of the Cr. P.C., as under:

“(a) “bailable offence” means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law for the time being in force;
and “non-bailable offence” means any other offence;”

It is pertinent to point out that individual offences under IPC have been specifically
declared as bailable or non-bailable in the first part of the first Schedule to Cr. P.C.
to find out whether that offence is bailable or non-bailable;however, in the absence
of any such declaration under such parent Act, the general rules mentioned in the
second part of the first Schedule to Cr. P.C. have to be referred to, for deciding
whether that offence is bailable or non-bailable.

Criminal Procedure Code has classified offences into two groups, namely bailable
and non-bailable depending on the gravity of the offences and the punishment pre-
Criminal Procedure Code (of 1898) (now, see under Ss. 436 to 450 of Cr. P.C. of
(1973)). The main provision relating to bail in bailable cases is contained in
Section 496, Criminal Procedure Code (of 1898) and that relating to non-bailable
cases is given in Section 497, Criminal Procedure Code(of1898).1

The classification of offences into the two categories of bailable and non- bailable
offences may perhaps be explained on the basis that bailable offences are generally
regarded as less grave and serious than non-bailable offences. On this basis it may
not be easy to explain why, for instance offences under Ss. 477, 477-

1. Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582at

p.1583 (Cal).
 1.

A, 475 and 506 of the Indian Penal Code should be regarded as bailable whereas
offences under S. 379 should be non-bailable. However, it cannot be disputed that
S. 496 of Cr. P.C. (of 1898) recognizes that a person accused of a bailable offence
has a right to been larged on bail.2

Bailable offences have been defined under clause (a) of Section 2, Cr. P.C., which
means offence which is shown as bailable in the first Schedule, or which is made
bailable by any other law for the bail being in force and “non- bailable offence”
means any other offence. The first Schedule of Cr. P.C. consists of two parts, the
first part is regarding the offences under the I.P.C. and second part is regarding
offences against other law. The second part provides that if the offence is
punishable with imprisonment for less than three years of fine only it shall be
bailable and can be tried byanyMagistrate.3

Section 4(1)(b) of Cr. P.C. (of 1898) defines bailable offence : bailable offence
means an offence shown as bailable in the second schedule, or which is made
bailable by any other law for the time being in force; and “non-bailable
offence”means any other offence.4

What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the
person appears before the court at the time of trial and if he is found guilty and is
sentenced to imprisonment, he must be made available to serve his sentence.
However, if it is reasonably evident that the person charged with an offence can be
made available for the above mentioned purposes without keeping him imprisoned,
then it is unfair to keep him in custody until his guilt is proven. It is a violation of a
person's fundamental right to restrict the person's liberty without any just cause.

2. TalabHaji Hussain v. Madhukar Pushottam Mondkar, AIR 1958 SC 376 at p. 378 : 1958 SCR 1226 :
1958Cri LJ 701.

3 Abdul Aziz v. State of U.P.¸2002 Cri LJ 2913 a p.2915 (All).

4 Kanubhai Chhagnlal Brahmbhat v. State of Gujarat, 1973Cri LJ 533 at p.536(Guj).

Bail is one such mechanism which is used to ensure the presence of an accused
whenever required by the court. CrPC does not define the term Bail, but
essentially, Bail is an agreement in which a person makes a written undertaking to
the court. A person who is in custody, because he or she has been charged with an
offence or is involved in pending criminal proceedings, may apply to be released
on Bail. Normally, in signing a bail agreement a person undertakes that he will be
present every time the matter is in court until the proceedings are finished, will
comply with any conditions set out in the agreement as to conduct while on Bail,
and will forfeit a specified sum of money if the person fails, without proper excuse,
to comply with any term or condition of the agreement. Two authorities that may
grant bail are the police and the courts. A person may be required to provide a
security as well. But it is not necessary. A person may also be let off on his own
bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a Bail
covers both release on one's own bond with or without surety.

When and When not can Bail be granted?

As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused
before the court whenever required. However, granting bail is not advisable in all
cases. For example, a murder, if let loose, may try to intimidate the witnesses, or
he may even abscond altogether. This is very bad for the society in general and
reflects bad on the justice system. Thus, various rules and procedures have been
formulated to make sure that only the deserving are released on bail. They try to
achieve a balance between the rights of the accused and the protection of the
society and effectiveness of the justice system.

The working of the bail system in India was highlighted in the case of Hussainara
Khaton vs Home Secretory, 1980. It came to the courts attention for the first time
that thousands of people were rotting in jails for 3 to 10 years for petty crimes
which do not have punishment more than 6 months to an year. This was because
they were unable to pay bond money for bail and the courts were too backlogged to
hear their cases. In this respect, J Bhagwati observed that the courts must abandon
the antiquated concept under which pretrial release is ordered only against bail
with sureties.

Thus, in general, the intention of the justice system is to give bail and not jail
before the accused is convicted. It is said that since the accused is presumed
innocence, he must be released so that he can fight for his defense. Thus, releasing
a person on bail is a rule, while denying bail is an exception.

Provisions for Bail can be categorized by the type of offence committed i.e.
bailable offence or non-bailable offence -

Bail for Bailable offences -

A person accused of a bailable offence can demand to be released on bail as a

matter of right. This is provided for by Section 436.
Section 436 - When any person other than a person accused of a non-bailable
offence is arrested or detained without warrant by an officer in charge of a police
station, or appears or is brought before a court, and is prepared at, any, time while-
in the custody of such officer or at any stage of the proceeding before such court to
give bail, such person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from
such person, discharge him on his executing a bond without sureties for his
appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained
person about his right to get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail.
Section 440(1) specifically provides that the amount of bail cannot be
unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to
provide any bail amount, must be released. If a person is unable to provide bail
amount for a week, then he can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already
spent half the maximum sentence provided for the alleged crime in jail. However,
this does not apply if death is one of the punishments specified for the offence.

Bail for Non-Bailable offences -

When a person is detained for a non-bailable offence, he cannot demand to be

released on bail as a matter of right. He can, however, request the court to grant
bail. The provisions in this case are governed by Section 437/

Section 437 - When any person accused of, or suspected of, the commission of any
non-bailable offence is arrested or detained without warrant by an officer-in-charge
of a police station or appears or is brought before a Court other than the High
Court or Court of session, he may be released on bail. If it appears to such officer
or Court at any stage of the investigation, inquiry or trial, as the case may be, that
there are no reasonable grounds for believing that the accused has committed a
non-bailable offence, but there are sufficient grounds for further inquiry into his
guilt, the accused shall be released on bail, or, at the discretion of such officer or
Court, on the execution by him of a bond without sureties for his appearance. A
police officer or the court may also release a person from custody if he feels that
there are any special reasons. But he must record his reasons in writing.

Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of
considerations that must be given while giving bail in case of non-bailable
offences. These are -

1. the nature of the crime

2. the nature of the charge, the evidence, and possible punishment
3. the possibility of interference with justice
4. the antecedents of the applicant
5. furtherance of the interest of justice
6. the intermediate acquittal of the accused
7. socio-geographical circumstances
8. prospective misconduct of the accused
9. the period already spent in prison
10. protective and curative conditions on which bail might be granted.

If, in any case triable by a Magistrate, the trial of a person accused of any non-
bailable offence is not concluded within a period of sixty days from the first date
fixed for taking evidence in the case, such person shall, if he is in custody during
the whole of the said period, be released on bail to the satisfaction of the
Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise
directs.
If, at any time, after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the Court is of opinion that there
are reasonable grounds for believing that the accused is not guilty of any such
offence, it shall release the accused, if he is in custody, on the execution by him of
a bond without sureties for his appearance to hear judgment delivered.

If the investigation is not done within 24 hours, the arrested person must be bought
before the court and if required, the police must make a case to extend the
detention. The court may extend the detention by 15 days. However, the detention
cannot extend more than 60 days (or 90 days, if the offence is punishable by death
or imprisonment for life), after which the accused must be released on bail. This
provision applies for bailable as well as non-bailable offence.
Section 436 A allows a person to be released on his own surety if he has already
spent half the maximum sentence provided for the alleged crime in jail. However,
this does not apply if death is one of the punishments specified for the offence.

Difference in Bail Provisions in Bailable and Non-

Bailable Offences

In the matter of admission to bail, the Code of Criminal Procedure makes a

distinction between bailable and non-bailable offences. The grant of bail to a
person accused of a non-bailable offence is discretionary under S. 497 of the Cr.
P.C. (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973] and the person released on
bail may again be arrested and committed to custody by an order of the High
Court, the Court of Session and the Court granting the bail. Under S. 498 of the Cr.
P.C. (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973], the High Court and the
Court of Session may release any person on bail and by a subsequent order cause
any person so admitted to bail to be arrested and committed to custody. A person
accused of a bailable offence is treated differently; at anytime while under
detention without a warrant and at any stage of the proceedings before the Court

before which he is brought he has the right under S. 496 of the Cr. P.C. (of 1898)
[equivalent to S. 437 of Cr. P.C. of 1973] to be released on bail. The Cr. P.C. (of
1898) makes no express provision for the cancellation of a bail granted under S.
496 of Cr. P.C. (of 1898) for a bailable offence. Nevertheless, if at any subsequent
stage of the proceedings, it is found that any person accused of a bailable offence is
intimidating, bringing or tampering with the prosecution witnesses or is attempting
to abscond, the High Court has the power to cause him to be arrested and to
commit him to custody for such period as it thinks fit. This jurisdiction springs
from the over riding inherent powers of the High Court and can be invoked in
exceptional cases only when the High Court is satisfied that the ends of justice will
be defeated unless the accused is committed to custody. This inherent power of the
High Court exists and is preserved by S. 561-A of the Cr. P.C. (of 1898). The
person committed to custody under the orders of the High Court cannot ask for his
release on bail under S. 496 of Cr. P.C. (of 1898), but the High Court may by a
subsequent order admit him to bail again.5

The contrast between Ss. 496 and 497 of Cr. P.C. (of 1898) is apparent. Under S.
496 the Magistrate has no discretion and he has got to enlarge the person, accused
of a bailable offence, on bail provided he is prepared to give bail; while under
Section 497, the Magistrate may refuse to enlarge him on bail in view of certain
circumstances which may be brought to his notice.6

If the offence is bailable, bail must be granted under Section 496, Criminal
Procedure Code (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973]. But if the
offence is non-bailable, the Court should decide the question of granting the bail in
the light of considerations namely, the nature and seriousness of the offence, a
reasonable possibility of the presence of the accused being secured at the trial, a
reasonable apprehension of the evidence being tampering with and the quantum
ofpunishment.7

5. Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay, 1967 Cri LJ 1576 at p. 1577.

6. Kanubhai Chhaganlal Brahmbhatt v. State of Guajrat, 1973 Cri LJ 533 at pp. 535-36 (Guj).

7. Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582at p.1583 (Cal).

 The basic distinction as to grant of bail in bailable and non-bailable offences is that
whereas a person accused of a bailable offence has a right to be released on bail
under S. 496 of J & K Cr. P.C. (of 1989 Smvt.) [equivalent to S. 437 of Cr. P.C. of
1973] the grant of bail to a person accused of a non-bailableoffence is in the
discretion of the court under S. 497 of the said Code [equivalent to S. 437 of Cr.
P.C. of 1973], the grant of bail to a person accused of a non- bailable offence is in
the discretion of the court under S. 497 of the said Code [equivalent to S. 437 of
Cr. P.C. of1973].8

Whenever an application for bail is made to a court, the first question that it has to
decide is whether the offence for which the accused is being prosecuted is bailable
or otherwise. If the offence is bailable, bail will be granted under S. 496 of the
Code of Criminal Procedure (of 1898) [equivalent to S. 437 of Cr. P.C. of 1973]
without more ado; but if the offence is not bailable, further considerations will
arise and the Court will decide the question of grant of bail in the light of those
further considerations such as, nature and seriousness of the offence, the character
of the evidence, circumstances which are peculiar to the accused, a reasonable
possibility of the presence of the accused not being secured at the trial, reasonable
apprehension of witnesses being tampered with, the larger interests of the public or
the State, and similar other considerations which arise when acourt is asked for bail
in anon-bailableoffence.

DIFFERENCE
BAILABLE OFFENCE

1. In case of bailable offence, the grant of bail is a mater of right. It may be either
given by a police officer who is having the custody of Accused or by the court.
2. The accused may be released on bail, on executing a bond, know as "bail bond",
with or without furnishing sureties.
3. The "bail Bond" may contain certain terms and conditions, such as:
 i. The accused will not leave the territorial jurisdiction of the state without
permission of court or police officer.
ii. The Accused shall give his presence before police officer every time, he is required
to do so.
iii. The Accused will not tamper with any evidence whatsoever, considered by police
in the investigation.
4. The court is empowered to refuse bail to an accused person even if the offence is
bailable, where the person granted bail fails to comply with the conditions of the
bail bond.

EXAMPLES OF BAILABLE OFFENCE

Although even in case of bailable offence, the bail may be refused, if credit of the
accused is doubtful. However following are some offences which are classified as
"Bailable offence" by the code itself:

1. Being a member of an unlawful Assembly

2. Rioting, armed with deadly weapon
3. Public servant disobeying a direction of the law with intent to cause injury to any
person.
4. Wearing Garb or carrying token used by public servant with fraudulent intents.
5. Bribery in relation to elections.
6. False statement in connection with elections.
7. Refusing oath when duly required to take oath by a public servant.
8. Obstructing public Servant in discharge of his public functions.
9. Giving or fabricating false evidence in a judicial proceeding.
10. Selling any food or drink as food and drink, knowing the same to be noxious.
11. Causing a disturbance to an assembly engaged in religious worship.
 NON BAILABLE OFFENCE

1. A non-bailable offence is one in which the grant of Bail is not a matter of right.
Here the Accused will have to apply to the court, and it will be the discretion of the
court to grant Bail or not.
2. Again, the court may require the accused to execute a "Bail-Bond with some
stringent conditions.
3. The court may generally refuse the Bail, if:
i. "Bail Bond" has not been duly executed , or
ii. if the offence committed is one, which imposes punishment of death or Life
imprisonment, such as "Murder " or "Rape" or
iii. The accused has attempted to abscond, and his credentials are doubtful.

The application for bail shall be filed before the Magistrate, who is conducting the
trial. The application after being filed is usually listed on the next day.
On such day, the application will be heard, and the police shall also
present the accused in court. The magistrate may pass such orders,
as he thinks fit.

5. If the bail is granted, the accused will have to execute a "Bail Bond".
6. On execution of bail-bond the accused is out of prison only on such
terms and conditions, as contained in the "Bail-Bond".
7. The amount of every bond, i.e. the security shall be reasonable, and
no excessive ( sec 440)
8. If, at any point of time, the terms and conditions of bail are not
fulfilled, the "Bond" shall be forfeited.
9. The application for Bail shall be made in the form, prescribed and
the designation of judge / Magistrate, should be clearly mentioned.
10.The application shall also contain an undertaking, that the accused,
shall fulfill all the conditions as contained in the Bail- Bond.

Cognizable and Non-Cognizable offences

Section 2(c) of the Criminal Procedure Code, 1973 defines cognizable

offence. It is such offence where the police officer may arrest an
accused without warrant as per the First Schedule of the Act or under
any other law for the time being in force. 2(l) of the Act defines non-
cognizable offence. In this case the police officer cannot arrest without
warrant.
Arrest is a tool in the hands of a police officer to prevent the accused
from escaping the clutches of law. It helps the police officer to prevent
further commission of offence as a precautionary method. A warrant is
a written order issued by a Magistrate to a police officer commanding
him to arrest a person. In most serious crimes there may not be
sufficient time to obtain a warrant from the Magistrate. By the time
police officer obtains warrant the accused may escape. So the
necessity to obtain warrant is not required in serious crimes. Thus it
can be concluded that cognizable offences are serious crimes and non-
cognizable are less serious crimes.
Cognizable offences are serious and Non-cognizable offences are less
serious.
 In Cognizable offences, the person can be arrested without warrant
while it is not possible in non-cognizable offences.
 In cognizable, the police officer can begin investigation without an
order from a Magistrate. But in non-cognizable it is not generally
possible.
  Complaint is not necessary in cognizable where it is generally
necessary in non-cognizable offence.
In India, crimes like rape, murder and theft are considered cognisable unlike
crimes like public nuisance, hurt and mischief. ] On 12 November 2013,
the Supreme Court of India said it was mandatory for the police to register a First
Information Report for all complaints in which a cognisable offence has been
discovered

The Section 154 in the Code of Criminal Procedure, 1973 of India states:

1. Every information relating to the commission of a cognisable offence, if

given orally to an officer in charge of a police station, shall be reduced to
writing by him or under his direction, and be read over to the informant; and
every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof
shall be entered in a book to be kept by such officer in such form as the
State Government may prescribe in this behalf.
2. A copy of the information as recorded under sub-section (1) shall be given
forthwith, free of cost, to the informant.
3. Any person aggrieved by a refusal on the part of an officer in charge of a
police station to record the information referred to in sub-section (1) may
send the substance of such information, in writing and by post, to
the Superintendent of Police concerned who, if satisfied that such
information discloses the commission of a cognisable offence, shall either
investigate the case himself or direct an investigation to be made by any
police officer subordinate to him, in the manner provided by this Code, and
such officer shall have all the powers of an officer in charge of the police
station in relation to that offence

Any Magistrate of the first class and any magistrate of the second class may take
cognizance of any offence. Section 190- 199 of the code describe the methods by
which, and the limitations subject to which, various criminal courts are entitled to
take cognizance of offences. Section 190(1) provides that, subject to the provisions
of S. 195-199, any magistrate of the first class and any magistrate of the second
class especially empowered in this behalf, may take cognizance of any offences-
a) Upon receiving a complaint of facts which constitute such offence.

b) Upon a police report of such facts.

c) Upon information received from any person other than a police officer, or
upon his own knowledge, that such an offence has been committed.

S. 190(2) – The Chief Judicial Magistrate may specially empower any magistrate
of the second class as mentioned to take cognizance of such offences as are within
his competence to inquire into or try. The term complaint has been defined in S.
2(d) as meaning: ‘any allegation made orally or in writing to a magistrate, with a
view to his taking action under this code that some person, whether known or
unknown, has committed an offence, but does not include a police report.’ It also
explain that A report made by a police officer in a case which disclose, 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 complaint. In the case of P. Kunhumuhammed v. State of Kerala [2] it was
said: the report of a police officer following an investigation contrary to S.
155(2)[3] could be treated as complaint under S. 2(d) and S. 190(1)(a) if at the
commencement of the investigation the police officer is led to believe that the case
involved the commission of a cognizable offence or if there is a doubt about it and
investigation establishes only commission of a non- cognizable offence. If at the
commencement of the investigation it is apparent that the case involved only
commission of a non-cognizable offence, the report followed by the investigation
cannot be treated as a complaint under S. 2(d) or 190(1)(a) of the Code. The
expression ‘police report’ has been defined by S. 2(r) as meaning “a report by a
police officer to a magistrate under S. 173(2)” i.e., the report forwarded by the
police after the completion of investigation.

Ajit Kumar Palit v. State of W.B.[4]: What is taking cognizance has not been
defined in the Code. The word ‘cognizance’ has no esoteric or mystic significance
in Criminal Law or procedure. It merely means ‘become aware of’ and when used
with reference to a court or judge. ‘to take notice judicially’.

Tula Ram v. Kishore Singh[5]:Taking cognizance does not involve any formal
action, or indeed action of any kind, but occurs as soon as a magistrate, as such
applies his mind to the suspected commission of an offence for the purpose of
proceeding to take subsequent steps towards injury or trial. Also, When a
magistrate applies his mind not for the purpose of proceeding as mentioned above,
but for taking action of some other kind, like ordering investigation under s.156(3)
or issuing a search warrant for the purpose of investigation he cannot be said to
have taken cognizance of the offence. And the word cognizance has been used in
the Code to indicate the point when the magistrate or a judge first takes judicial
notice of an offence.

Pitambar Buhan v. State of Orissa [6]: Taking cognizance includes intention of

initiating a judicial proceeding against an offender in respect of an offence or
taking steps to see whether there is basis for initiating a judicial proceeding.

Ordinarily a private citizen intending to initiate criminal proceedings in respect of

an offence has two courses open to him. He may lodge an FIR before the police if
the offence is cognizable one; or he may lodge a complaint before a competent
judicial magistrate irrespective of whether the offence is cognizable or non-
cognizable. The object of the Code is to ensure the freedom and safety of the
subject in that it gives him the right to come to court if he considers that a wrong
has been done to him or to the Republic and be a check upon police vagaries. [7]
As observed earlier when a complaint is filed before a magistrate, the magistrate
may simply order investigation by the police. The police may then investigate the
case and submit the report to the magistrate. In such a situation, when the
magistrate then proceeds with the case, a question of some importance arises as to
whether the magistrate had taken cognizance of the offence on the complaint
before sending it for investigation or whether the case was sent to the police
without taking cognizance of the offence and the cognizance was taken only on the
report submitted by the police. There are certain advantages to the complaint if
cognizance was taken on a complaint. For instance, in the event of an acquittal of
the accused in a complaint case, the complainant gets a right of appeal. It’s now
well-settled that when a petition of complaint is filed before a magistrate the
question whether he can be said to have taken cognizance of the offence alleged in
the complaint under S. 190(1) depends upon the purpose for which he applies his
mind to the complaint. If the magistrate applies his mind to the complaint for the
purpose of the proceeding with the complaint, he must be held to have taken
cognizance of the offences mentioned in the complaint but on other hand if he
applies his mind to the complaint not for any such purpose but only for the purpose
of ordering an investigation or for issuing search warrant, he cannot be said to have
taken cognizance of the offence.

It has been explained that the magistrate while taking cognizance of an offence, is
becoming aware of the commission of that offence and that awareness continues.
So a magistrate would be entitled to take cognizance of a complaint case after
having taken cognizance of the case on police report. It has also been opined that
even if this involved taking cognizance twice, there is no harm as no provision in
the Code prohibits it. However it is settled that a court can take cognizance of
offence only once and after that it becomes functus officio.

If cognizance is to be taken on a police report under S. 190(1)(b) the report must be

one as defined in S. 2(r). That is the report must be one forwarded by a police
officer to a magistrate under S. 173(2) and not any other report like preliminary
report or an incomplete challan. And it is for the magistrate to decide whether the
police report is complete. His power cannot be controlled by the investigating
agency. On receiving police report the magistrate may take cognizance of the
offence under S. 190(1) (b) and straightaway issue process. This he may do
irrespective of the view expressed by the police in their report whether an offence
has been made out or not. The magistrate has not to proceed mechanically in
agreeing with the opinion formed by the police, but has to apply his mind and
persue the papers placed before him. He has to apply his mind to all the details
embodied in the police report and to other documents and papers submitted along
with the report. It may be noted that the magistrate takes cognizance of the
offences and not the offender. The magistrate is not bound by the conclusion
drawn by the police and it is open to him to take cognizance of an offence under S.
199(1)(b) on the basis of the police report even though the police might have
recommended in their report that there were was no sufficient ground for
proceeding further or that it was not a fit case where cognizance should be taken by
the magistrate. It has been ruled that the magistrate can take cognizance of an
offence if he is satisfied about the material.

According to S. 190(1)(c) the magistrate can take cognizance of any offence upon
the information received from any person other than a police officer or upon his
knowledge. The object is to enable magistrate to see that justice is vindicated
notwithstanding that the persons individually aggrieved are willing or unable to
prosecute. Hence the proper use of the power conferred by this provision is to
proceed under it when the magistrate has reason to believe the commission of a
crime but is unable to proceed ordinary way owing to absence of any complaint or
police report about it. Therefore the word ‘knowledge’ as used in the clause (c)
should be interpreted rather liberally so as to subserve the real object of the
provision. It has been opined that if a magistrate takes action under S. 190(1)(c)
without having jurisdiction then such trial would be vitiated.

S. 190 provide that under the condition specified in the section certain magistrate
‘may’ take cognizance of offences. There are varying opinions of the Courts on
this point. Considering the observation of the Supreme Court in this connection it
may be fairly concluded that ‘a magistrate has certain discretion but it must be
judicial in nature, it is limited in scope’. And taking cognizance does not depend
upon the presence of the accused in the court. In fact he does not have any role at
this stage. There is no question of giving him a hearing when final report of the
police is considered. Nor does refusal to take cognizance of an offence leads to
discharge of the accused. It may be noted that a magistrate can take cognizance of
any offence only within the time-limits prescribed by law.

Comparison Chart

BASIS FOR COGNIZABLE

NON-COGNIZABLE OFFENCE
COMPARISON OFFENCE

Meaning Cognizable offence is one Non-cognizable offences refers to

in which the police is
authorized to take the offences in which the police
cognizance of the crime at
has no authority to apprehend
its own.
a person for crime on its own.

Arrest Without warrant Requires warrant

Approval of Not required to begin Prior approval of court is required

Court investigation.
to begin investigation.

Offence Heinous Comparatively less heinous

Includes Murder, rape, theft, Forgery, cheating, assault,

kidnapping, etc.
defamation etc.
 BASIS FOR COGNIZABLE
NON-COGNIZABLE OFFENCE
COMPARISON OFFENCE

Petition FIR and complaint Complaint only.

DIFFERENCE
COGNIZABLE OFFENCE

1. Cognizable offences are those where a police officer can arrest without warrant.
2. And such cases, after arrest has been made, the accused will be produced before a
magistrate, and he may require the police officer to investigate the matter.
3. After investigation, if the case is made out, i.e. charge sheet filed goes against
accused, the magistrate can order for arrest.
4. During the pendency of trial, bail application can be moved before the concerned
magistrate.
5. Cognizable offences are both bailable, and non-bailable.

EXAMPLES OF COGNIZABLE OFFENCES ARE

1. Offences of waging or attempting to wage war, or abetting the waging of war

against the government of India.
2. Wearing the dress or carrying any token used by a soldier, sailor or airman with
intent that it may be believed that he is such a soldier, sailor or airman.
3. Rioting armed with deadly weapon.
4. Hiring, engaging or employing person to take part in an unlawful assembly or
taking part in self.
 5. Being or expecting to be a public servant, and taking, and taking a gratification
other than legal remuneration in respect of an official act.
6. Public servant obtaining any valuable thinks, without consideration, from a person
concerned in any proceeding or business transacted by such public servant.
7. Counterfeiting, or performing any pat of the process of counterfeiting Indian coin.
8. Having possession of a counterfeit government stamp.
9. Making or selling false weights or measures for fraudulent use.
10. Negligently doing any act known to be likely to spread infection of any disease
dangerous to life.
11. Causing a disturbance to an assembly engaged in religious worships.

NON- COGNIZABLE OFFENCE

1. Non cognizable offences are those, where a police officer cannot arrest without a
warrant.
2. In such offences for arrest, all the steps have to be followed like
i. Filing of complaint/F.I.R.
ii. Investigation
iii. Charge sheet,
iv. Charge sheet to be filed in court
v. Trial
vi. Final order of arrest if case has been made out.

EXAMPLES OF NON-COGNIZABLE OFFENCES ARE

Following are some examples of non-cognizable offences.

1. Owner or occupier of land not giving information of riot etc.

2. A public servant disobeying a direction of the law with intent to cause injury to any
person.
3. A public servant unlawfully engaging in trade.
4. Bribery during elections.
5. Making any false statement in connection with an election.
6. Absconding to avoid service of summons or other proceeding from a public
servant, like where summons or notice require attendance in person etc, in a court
of justice.
7. Refusing to take oath when duly required taking oath by a pubic servant.
8. Obstructing public servant in discharge of his public functions.
9. Giving or fabricating false evidence in a judicial proceeding.
10. False claim in a court of justice.
11. Fraudulent use of false instrument for weighting.
12. Selling any food or drink as food and drink knowing the same to be noxious.
13. Offering for sale or issuing from a dispensary any drug or medical preparation
known to have been adulterated.
14. Voluntarily causing hurt on grave and sudden provocation, not intending to hurt
any other than the person, who gave the provocation.
15. Buying or disposing of any person as a slave.
16. Dishonest misappropriation of movable property, or converting it to one's own use.
Warrant Case And Summons Case

Section 2(W) of the CrPC, 1973

“Summons-case” means a case relating to an offence, and not being a warrant-

case.
Section 2(X) of the CrPC, 1973
“Warrant-case” means a case relating to an offence which is punishable with:

 death,
 imprisonment for life or
 imprisonment for a term exceeding two years

Definition of Summon

In law, the summon is a notice issued by the court to the persons involved in the
lawsuit, containing an order for appearing or for producing a document/ thing
before the judge. It can be explained as a legal document delivered to the party, i.e.
defendant or witness, with respect to a lawsuit.

When a case is initiated by a plaintiff (the aggrieved party), against the defendant
(accused), the summons is served. The court orders to issue summons to the
defendant to notify that he/she is being sued, ensuring a fair trial. It is also issued
to other persons who are directly or indirectly involved in the case.

A summon is in writing, created in duplicate, duly signed by the presiding officer

of the concerned court or by the officer authorised by the high court in this regard.

The police officer or officer of the court or any other person who is a public
servant, delivers the summon, to the defendant. However, the summon issued to
witness is served to him/her by a registered post, wherein the acknowledgement
letter should be signed by the witness, on receiving the summon.
Definition of Warrant

By the term warrant, we mean a written authorization given by a judge or

magistrate, that allows a police officer to perform a specific act, that would
otherwise be called illegal, as the act is against the fundamental rights of the
citizens. The warrant is used to apprehend someone, search the premises, seize the
property or carry out any such activity, that is required to regulate justice.

In case of Danatram Karsanal, 1968, it was held that summons should not only
be shown but a copy of it be left, exhibited, delivered, or tendered, to the person
summoned. In a case, where a copy was tendered to the person, it was held that
the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be
summoned is employed abroad, the court can send summons to the concerned
embassy official for the purpose of service since the embassy official is also a
public servant. Merely affixing the summon on a conspicuous part of the house
will not amount to service of the summon.In the case of Central Bank of India
vs Delhi Development Authority, 1981, it was held that a Branch Manager is a
local manager and if he has been served the service shall be deemed to have
been effected on the company itsel

Summons Case Warrant case

Cr PC prescribes two procedures for
Cr P C prescribes only one procedure
the trial of a warrant case my
for all summons cases,
magistrate - one for case instituted
whether instituted upon a
upon a police report and one for case
police report or otherwise.
instituted otherwise than on a police report.
No charge needs to be
framed only the particulars of A charge needs to be framed
the offence needs to against the accused.
be conveyed to the accused.
As per S. 252, if the accused
As per S. 241, After the charge is
pleads guilty,the magistrate must
framed, the accused may plead guilty
record the plea of the
and the magistrate may convict him on his
accused and may, in his
discretion.
discretion, convict him on such plea.
Accused may plead guilty
by post without appearing Accused must appear personally.
before the magistrate.

The accused may be
acquitted, if the complainant
is absent or if the complainant dies.
The complainant may, with the
permission of the
court, withdraw the complaint against
the accused.
When a warrant case is tried as a
summons
case and if the accused is acquitted
under S. 255,
the acquittal will only amount to
discharge.
Trial of a warrant case as a summons
case it is a
serious irregularity and the trial is
vitiated if the accused has been
prejudiced.
Accused gets only one opportunity.
Magistrate can discharge the accused if
complainant is absent, or no charge is
framed, or if the offence is compoundable
and non cognizable.
The complainant may, with the permission
of the court, withdraw the remaining charges
against an accused, if he is charged with
several offences and convicted on one or
more of them.
When a summons case is tried as a warrant
case and if the accused is discharged
under S 245, the discharge will amount
to acquittal.
Trial of a summons case as a warrant case
is an irregularity which is curable under
Section 465.
Accused may get more than one
opportunity to cross-examine the
prosecution witness.

After convicting the accused, the magistrate

No such power to the magistrate in
may take evidence regarding previous
summons case.
conviction not admitted by the accused.
All cases which are not punishable by
All cases which are punishable by death,
death, imprisonment for life,
imprisonment for life, or for more than two
or for more than two years are
years are warrant cases.
summons cases.
As per Section 259, a summons case
can be converted into a warrant case if
the case relates to an offence that
entails more than 6 months of A warrant case cannot be converted into a
imprisonment as punishment and the summons case.
judge feels that in the interest of justice
it the case should be tried as a warrant
case.