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Cognizable Offence

Posted on October 15, 2025 by user

Introduction

A “cognizable offence” is a foundational classification in Indian criminal procedure: it determines whether the police can initiate investigation and arrest without prior judicial permission. This dichotomy—cognizable versus non‑cognizable—shapes immediate policing response, the victim’s right to an FIR, an accused person’s exposure to police custody, and the tactical choices available to litigators. Mastery of the concept is indispensable for criminal practitioners, civil lawyers encountering criminal ancillary proceedings, and public law counsel seeking remedies for police excess or inaction.

Core Legal Framework

  • Statutory definition (CrPC):
  • Section 2(c), Code of Criminal Procedure, 1973 — “cognizable offence” (short form): an offence for which a police officer may, in accordance with the First Schedule or under any law for the time being in force, arrest without warrant and to investigate without the order of a Magistrate.
  • Section 2(l), CrPC — “non‑cognizable offence”: an offence for which a police officer has no authority to investigate without an order of a Magistrate under Section 155(2).
  • FIR and investigation:
  • Section 154, CrPC — deals with recording information relating to the commission of a cognizable offence (the First Information Report). The statutory duty to record information and the right of the informant to a copy are central.
  • Section 156(1), CrPC — empowers police to investigate cognizable offences suo motu without permission of the Magistrate.
  • Section 156(3), CrPC — empowers a Magistrate to direct police to investigate when a complaint is presented to the Magistrate and police have refused to act.
  • Arrest without warrant:
  • Section 41 and Section 41A, CrPC — lay down conditions and procedure in which arrest without warrant may be effected and the requirement of notice (where applicable); these provisions interplay with judicial guidelines limiting arbitrary arrests.
  • Classification:
  • The First Schedule to the CrPC contains lists/classifications indicating cognizable/non‑cognizable status of various offences; the Government can also notify changes — always verify the current Schedule and state notifications for specific offences.

Practical Application and Nuances

  1. Immediate consequences of the label “cognizable”
  2. Police may register an FIR under Section 154 and commence investigation without prior judicial sanction.
  3. Police have power to arrest without a warrant and take the accused into custody (subject to statutory limits and judicial safeguards).
  4. For the victim or informant: prima facie right to have the information recorded as an FIR (see Lalita Kumari below), except in narrowly circumscribed exceptions.

  5. Registration of FIR — what to do and expect

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  6. On receipt of information disclosing a cognizable offence, the officer‑in‑charge must reduce it to writing and register an FIR. Practitioners should ensure the complaint contains basic elements: time, place, nature of the offence, identity (if known) of accused, and material facts.
  7. If police refuse to register an FIR, invoke Section 156(3) — present the complaint to the Magistrate and seek an order directing investigation; alternatively, file a writ under Articles 226/32 where appropriate.
  8. Preliminary enquiry: Courts have allowed narrowly tailored preliminary inquiries only to test genuineness of information (not to frustrate registration). Practitioners should resist pretextual inquiries intended to delay FIR registration.

  9. Arrest and custody — strategic and technical points

  10. Arrests in cognizable cases are lawful without a magistrate’s warrant but must comply with CrPC safeguards and binding judicial directions (see Joginder Kumar, D.K. Basu, Arnesh Kumar).
  11. Distinguish cognizability from bailability and severity: a cognizable offence may be bailable or non‑bailable; the cognizable tag alone does not determine bail entitlement.
  12. For accused: insist police comply with Section 41/41A requirements and the D.K. Basu safeguards — immediate entry in the arrest memo, signatures of witnesses, right to inform relative/legal practitioner, free legal aid where applicable, medical examination at the time of production before a Magistrate.
  13. For victims/informants: demand FIR copy (Section 154), insist on steps such as seizure, preservation of evidence, and prompt medico‑legal examination in bodily injury/sexual offences.

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  14. Everyday judicial practice

  15. Courts scrutinize police decisions to arrest: the necessity of arrest must be demonstrable (no automatic arrests). Senior courts routinely require recorded reasons for arrests, especially where offences carry penalties up to seven years (see Arnesh Kumar).
  16. Magistrates exercise gatekeeping via Sections 167 and 156(3) — and in remand hearings check statutory compliance and the sufficiency of reasons for detention.
  17. Investigations into cognizable offences commonly involve: FIR → registration → preliminary steps (seizures, notices under s.91 CrPC) → arrest (if required) → collection of evidence → charge sheet under s.173 CrPC.

  18. Examples (everyday scenarios)

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  19. Murder (IPC 302), Rape (IPC 376): clearly cognizable — immediate FIR, arrest, and urgent procedural steps (seizure, post‑mortem, MLC) are routine.
  20. Cheating (IPC 420): may be cognizable; practitioners should check the First Schedule and state notifications; many economic and fraud offences are cognizable, but their investigation requires care (preservation of documents, forensic accounting).
  21. Complaints of harassment or petty hurt: may be non‑cognizable; police must seek magistrate order before investigating unless the offence has been made cognizable by statute/notification.

Landmark Judgments

  • Lalita Kumari v. Government of U.P., (2013) 4 SCC 1
  • Principle: Registration of an FIR is mandatory where information discloses a cognizable offence. The judgment restricted police discretion to refuse FIR registration and clarified that preliminary inquiry is permissible only in exceptional circumstances to verify genuineness (and not as a tool to avoid registration).
  • Practical import: an aggrieved person denied FIR should promptly move Magistrate under Section 156(3) or approach the High Court by writ.

  • Joginder Kumar v. State of U.P., (1994) 4 SCC 260

  • Principle: Arrest is a serious invasion of personal liberty; police must not make arrests as routine, and must record reasons when arrest is made. The Court provided guidelines for judicial review of arrests.
  • Practical import: lawyers should ask courts to insist on the police recording the basis for arrest and examine necessity in remand hearings.

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  • D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

  • Principle: Laid down specific safeguards on arrest and detention — arrest memo, informing relative, right to legal counsel, medical examination, entries in police diary, etc.
  • Practical import: non‑compliance with Basu safeguards strengthens habeas corpus or bail applications and grounds for compensation.

  • Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

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  • Principle: For offences punishable with imprisonment up to seven years (and in certain other cases), the police must follow Section 41 CrPC and obtain written permission to arrest; the SHO must record reasons for arrest and for not issuing notice under Section 41A.
  • Practical import: Arnesh Kumar empowers defence counsel to resist custodial arrest in a wide range of cases and requires magistrates to scrutinize remand applications carefully.

Strategic Considerations for Practitioners

For defence counsel (accused):
– Immediate steps on arrest: insist on compliance with D.K. Basu (arrest memo, informing relative, medical exam), obtain copy of FIR, record statements of witnesses where possible, and move for regular bail/anticiapatory bail as fit.
– Use Arnesh Kumar and Joginder Kumar to challenge unnecessary arrests: force police to show necessity for arrest (risk of tampering, absconding, obstruction), demand recorded reasons, and file prompt habeas corpus if custody is manifestly illegal.
– Do not conflate cognizability with non‑bailability: address both issues separately in bail hearings.

For victim/complainant counsel:
– Draft a concise, specific complaint: time, place, sequence of events, names or descriptions of accused, witnesses, and documents. Demand FIR registration under Section 154 and insist on copy.
– If police refuse, immediately approach Magistrate under Section 156(3) or file writ proceedings. Cite Lalita Kumari to preclude routine preliminary inquiry.
– For sexual offences/hurt/murder: ensure swift medico‑legal/forensic steps and preservation orders from court where needed.

For public interest/state lawyers:
– Ensure police training and adherence to the First Schedule and statutory protections to avoid judicial interference for malfeasance.
– Use internal police disciplinary measures where false or frivolous FIRs are filed to curb misuse.

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Common pitfalls to avoid
– Treating cognizability as determinative of bail — always analyse bailability separately.
– Allowing police to conduct indefinite preliminary inquiries to frustrate FIR rights — respond quickly with Section 156(3) or writ remedies.
– Accepting generic diary entries or vague arrest memos — insist on particulars and contemporaneous recording as required by Basu/Arnesh Kumar.
– Overlooking state/central notifications that alter cognizability status of specific offences.

Practical checklists (quick reference)
– For counsel advising complainant:
– Ensure complaint reduced to writing; demand FIR copy immediately.
– Preserve evidence: MLC, photographs, CCTV, documents; request seizure memos.
– If FIR not registered, file complaint before Magistrate under s.156(3) and seek direction for investigation.
– For counsel advising accused:
– On arrest: obtain arrest memo and MLC, notify family, file bail application or habeas corpus promptly.
– On pre‑arrest stage: consider anticipatory bail where applicable; invoke Section 41A notice if offences fall within its scope.
– For drafting/pleading:
– Cite Lalita Kumari when police refuse FIR; cite Arnesh Kumar/Joginder Kumar when contesting arrest/seek remand scrutiny; cite D.K. Basu for custodial safeguards.

Conclusion

“Cognizable offence” is not merely a theoretical label — it controls the immediate exercise of state coercive power: whether the police can register an FIR, investigate at once, and arrest without a magistrate’s warrant. Practitioners must be alert to (a) the statutory definitions and the First Schedule, (b) the mandatory duty to register FIRs in cognizable cases (Lalita Kumari), and (c) the procedural and constitutional safeguards limiting arrests (Joginder Kumar, D.K. Basu, Arnesh Kumar). Tactically, prompt action (FIR drafting or use of Section 156(3)), insistence on procedural safeguards, and targeted reliance on landmark case law will usually determine whether the immediate consequences of a cognizable label operate to your client’s advantage or detriment.

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